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15 Year-Old Girl Arrested for Sending Nude Cell Phone Pictures of Herself:
From the Newark (OH) Advocate:
  A 15-year-old girl is accused of distributing nude photos of herself to other minors, and one state legislator is questioning whether she should be labeled a sex offender.
  The Licking Valley High School student was arrested Friday after school officials discovered the materials and brought in the school's resource officer for a police investigation.  After spending the weekend incarcerated, she pleaded deny Monday to both charges: illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony.
Via Don't Tase Me, Bro.
richard cabeza:
Three squares and a roof, with no retribution from a victim, just for pushing myself down a flight of stairs? Sign me up!
10.14.2008 10:55pm
Cornellian (mail):
Isn't there some kind of "you can't abuse yourself" defense here? I vaguely recall some cases from Crim law back in law school along the lines of "1) underage girl propositions guy 2) guy has sex with girl 3) girl can't be charged with attempted statutory rape, counselling to commit statutory rape etc because she's the party the law was intended to protect."

It seems absurd to think that creating a nude photo of yourself could turn you into a sex offender. Given the charge "illegal use of a minor in nudity-oriented material" it doesn't seem like it would be a defense if she had never given the pictures to anyone.
10.14.2008 10:55pm
Cornellian (mail):
I meant "assisting" not "attempting" in #3, above.
10.14.2008 10:56pm
ed (mail) (www):
Hmmmm.

"Licking Valley High School"

Oh come on!

This isn't April is it? Where's my calendar?
10.14.2008 10:58pm
Dave N (mail):
I'm with Cornellian--seems like the girl did something very stupid, not very criminal.
10.14.2008 10:59pm
Redlands (mail):
ed, damn you, you beat me to it! And no, no one could in a hundred years make that up.
10.14.2008 11:07pm
festivus (mail):
It's easy to laugh at this kind of prosecution but I'm never jealous of the prosecutor who has to make the call.

Sure, she needs help. Sometimes the juvenile justice system may be the best place for a kid. And if that's not the case here, you still have to confront the problem of the very real creation and distribution of very real child pornography.

I'm glad I don't have to deal with these types of investigations.

The registration this is just silly, though.

festivus
10.14.2008 11:07pm
festivus (mail):
*registration thing, not registration this. Oops.
10.14.2008 11:08pm
Dave N (mail):
Festivus,

You make a good point but you somewhat smother it by claiming to be jealous of the prosecutor.

I think kiddie porn is evil. That said, I will repeat what I said above: this is something very stupid, not something very criminal.
10.14.2008 11:18pm
OrinKerr:
Dave N,

I think Festivus said he wasn't jealous, not that he was.
10.14.2008 11:19pm
richard cabeza:
I'm trying to think of adult parallels and not doing so well: the law exists "for the good of you" from other people, and doesn't make sense when applied this way.

Home distillation? Mostly tax related, but the argument's made about quality and healthfulness. If you know what you're doing and take the risk on, it's none of their business.

Raw milk? AFAIK it only applies to distribution.

Traffic laws? Seatbelts don't involve other passengers, most of the rest involve two-way dangers (lights, speed).

Embargos? Usually the point is the economics of trade on the embargoed region, not the merchandise itself.

Medicines that aren't approved for use in the country? That sounds sort of sound.
10.14.2008 11:21pm
theobromophile (www):
Silly question of the day: beyond the issue of the law being designed to protect the so-called perpetrator, isn't there a First Amendment issue here? If she's creating videos of herself, there's an element of expression in there that is not involved with making videos of other minors.
10.14.2008 11:26pm
Mike& (mail):
It seems absurd to think that creating a nude photo of yourself could turn you into a sex offender.

She sent it to other people. That's the crime.
10.14.2008 11:26pm
Dan M.:
A 15-year-old needs court intervention and counseling because she sent nude photos to some guy friends? Seriously? She'd be in less trouble if she'd simply had sex with every single one of them.
10.14.2008 11:28pm
U.Va. Grad:
Maybe it's just that I grew up nearby, but I never got why Licking Valley was funny. I mean, I suppose I appreciate it from an intellectual standpoint, but you get so used to seeing it in the sports pages every day or hearing about it when school's out for snow that the joke just isn't there any more. Kind of like growing up in Intercourse, PA, I suppose.
10.14.2008 11:29pm
ed (mail) (www):
Hmmmmm.

"Home distillation? Mostly tax related, but the argument's made about quality and healthfulness. If you know what you're doing and take the risk on, it's none of their business. "

It's a pity really. I've been playing around with infusing flavors into vodka, but it's not the same. Home distillation would be possible if there were just licensing and training issues. But the requirements for separate buildings, fire codes and the like make any effort a business with a minimum of $500k-$1 million.

Funny how people in New Zealand can do it without health issues.
10.14.2008 11:34pm
Roger Schlafly (www):
There are a lot of 15-year-old kids who see nothing wrong with sending nude cell phone emails. Either we need to change the law, or re-educate millions of teenagers.
10.14.2008 11:35pm
aces:
I know a guy who went to Denison University in Licking County. I asked whether the students made fun of the name, and he said, "not really." In fact, the school has a women's dorm called Beaver Hall!
10.14.2008 11:42pm
whit:
i had a case like this that was SOMEWHAT similar.

mom found (in her recylce bin) a picture of her (otherwise chaste lol) 15 yr old daughter engaged in sexually explicit behavior with 2 other (apparently) underage kids.

after a lot of investigatin', cajolin, trackin' down, etc. I finally determined that

kid #1 (a minor) took pictures of his other (minor) friends engaged in sexually explicit conduct. note that there was no nudity. but there was a simulated sexual act, which does fall under the child porn statutes. i'll leave it to your imagination.

anyway, after spending countless hours on this, i determined there was no criminal intent to DELIVER these sexually explicit photos, and that it was 4 kids goofing around. the prosecutor agreed, and no charges were filed.

any kid stupid enough not to EMPTY the friggin' recycle bin (let alone purge the hard drive free space) aint exactly a rocket scientist.
10.14.2008 11:45pm
LN (mail):
very real child pornography

Ah yes, that magical word "child," referring both to 1-year-old babies and to people old enough to have sex and give birth. Why on earth would we want to draw finer distinctions when everything we need to know is captured by the word "child"???
10.14.2008 11:46pm
Bode:
If I understand this story correctly, had the girl simply starting having sex with the minors she sent the pictures to, from age 13 on, and had a child every 9 months, she wouldn't be guilty of a crime (with the possible exception of being an "unruly minor"). Not that she's going to college, but her registration as a sex offender probably means she can't live in the dorms, should she go to school. Heck, I don't think she could live in most of the city of Los Angeles!

This isn't the first time this has happened, and every time I read an article like this, I wonder why prosecutors don't use more discretion. This kid needs some counseling, not the sex offender registry. Surely there is something she can be charged with that does not punish her further but might actually help her. Isn't that the goal of the juvenile justice system?
10.14.2008 11:47pm
whit:

A 15-year-old needs court intervention and counseling because she sent nude photos to some guy friends? Seriously? She'd be in less trouble if she'd simply had sex with every single one of them.



consider that it's perfectly legal (in my state) for a 15 yr old to have sex with a 16 yr old etc. and for a 16 yr old to have sex with a 40 yr old.

but if people start takin' pictures... watch out!
10.14.2008 11:47pm
EconGrad:
I can't remember the case right now, but there was a case awhile back where a (15 year old?) boy published nude pictures of himself on the Internet, was charged with child pornography, and he offered a 1st amendment defense because the only type of pornography a child may make of himself is child pornography, and he asserted he had a right to do so. Don't know if he won and can't find it with Google right off the bat, but maybe someone remembers the case.
10.14.2008 11:49pm
whit:

Ah yes, that magical word "child," referring both to 1-year-old babies and to people old enough to have sex and give birth. Why on earth would we want to draw finer distinctions when everything we need to know is captured by the word "child"???


like when gun control freaks refer to gangbangers getting shot (17, 18, 16, etc. and often in the process of committing robbery, etc.) as "child victims of gun violence"...

i hear ya
10.14.2008 11:49pm
Dave N (mail):
Orin Kerr,

Thanks. And a good rule of thumb I didn't follow--READ the post you are going to comment on TWICE before responding.

And apologies to Festivus for misreading his post so badly.
10.14.2008 11:51pm
Bill Poser (mail) (www):
The use of a minor charge is indeed ridiculous, but what about "possession of criminal tolls"? I suppose that the "criminal tool" is the camera (or cell phone) she used to take the pictures. If so, that is even more ridiculous.
10.14.2008 11:52pm
Bored 3L:
This just goes to show how valuable sex offender registration is. Keeping predators like this SCUM away from our children should be top priority. And if it isn't exactly clear that sex offender registries prevent crimes against children, then the only thing to do is make them stronger. As I always say, "If you try something and it doesn't work, double down, baby."
10.14.2008 11:58pm
Bill Poser (mail) (www):
Bored 3L,

Indeed, keeping this girl away from herself could be quite a trick. Perhaps we will see the first case of penal schizophrenia. I'm not sure if that would be cruel, but it sure seems unusual.
10.14.2008 11:59pm
kdonovan:
With this logic every 14 year old boy in the country is a sex offender for abusing himself.
10.15.2008 12:02am
ShelbyC:
Why is transfer necessary? I thought simple possession of a sexually explicit photograph of a minor was child pornography.
10.15.2008 12:12am
Dilan Esper (mail) (www):
It grosses me out to even argue this, given that only creeps and pedophiles would want to look at this material.

That said, there should be a First Amendment right to distribute your own photograph. The primary justification for the child porn exception to the First Amendment, which like all exceptions needs to be kept narrow, is that children are harmed by the distribution of this material. But if the only participant in the activity voluntarily distributes it, the claim of harm seems to me to be much more attenuated.

In contrast, if there is no First Amendment right, then theoretically you could be arrested for giving a picture of yourself as a baby to a friend.
10.15.2008 12:24am
Mike& (mail):
a 1st amendment defense because the only type of pornography a child may make of himself is child pornography, and he asserted he had a right to do so. Don't know if he won and can't find it with Google right off the bat, but maybe someone remembers the case

The 1A exception exists because, although porn is protected speech, the production of child porn is inherently harmful to minors. But if the minor created it herself, would the creation of said child pron still be inherently harmful to the minor?

Interesting issue. Maybe E. Volokh has looked into it before.
10.15.2008 12:28am
HoyaBlue:
As others haven't noted tangentially, the age of the 'perpetrator' makes this very dicey.

I mean, do you all remember being 15? Would you have objected if any girl in the class sent you a naked picture of herself? I tend to think a 15 year old is a lot closer to an 18 year old 'adult' than what is traditionally meant by the term 'child.' The girl is for the most part old enough to be seen as an independent moral agent; not entirely, perhaps, but close. Isn't she almost of the age where the government ought to some degree let her go about her business, sexually and otherwise?

The people involved in this case are at an age where the boundaries between children and adults are very blurred. In another place, another time, this girl probably would already be a married mother.

I'm not sure how I feel about this either way, but this doesn't seem like an incident where 'exploitation' or anything of that sort is an issue. I'm not even sure the girl really did anything wrong, but I also tend to be on the extremely socially liberal end.
10.15.2008 12:34am
HoyaBlue:
Should be have noted in the first sentence there.
10.15.2008 12:36am
Ken Arromdee:
It grosses me out to even argue this, given that only creeps and pedophiles would want to look at this material.

She gave the pictures to other minors. I don't think another 15 year old who wants to look at the pictures of this 15 year old is either a creep or a pedophile.
10.15.2008 12:38am
Ohio Scrivener (mail):
What next -- charging a person who fails to commit suicide with attempted murder?

Interpreting criminal laws in a way that does not distinguish that which you do to yourself from that which you do to others can often lead to absurd outcomes.
10.15.2008 12:43am
Elliot123 (mail):
"It grosses me out to even argue this, given that only creeps and pedophiles would want to look at this material."

Ever been fifteen?
10.15.2008 12:46am
festivus (mail):
Images of child pornography are contraband, like cocaine. Of course unlike cocaine, they can be redistributed over and over, and everyone gets to have his or her own copy.

Therefore the distribution of them is very different from the act of throwing oneself down the steps, or failing to commit suicide, or whatever else from the preceding posts.

festivus
10.15.2008 12:52am
Dan M.:
Well, I imagine that minors could be immune from child pornography charges unless they distribute them to adults. Charging people who can legally have sex with a crime for taking a photo and distributing it among themselves is ridiculous.
10.15.2008 12:58am
G.R. Mead (mail):
So, to fully document the abyss of unreason we teeter on -- we can protect her from exploiting her own body, victimizing herself by displaying her privates and charging her as a felon -- but if she becomes pregnant, we cannot protect the life of her unborn child from her.

She cannot make decisions about the display of her own body, but she can make decisions allowing someone else to invade her body -- to destroy the body of another.

Not even her parents can approve the display of her body, but her parents need not even be consulted about an intimate physical invasion of her body -- but ONLY if it is done to destroy an unborn child.

What am I missing here?
10.15.2008 1:06am
whit:

Well, I imagine that minors could be immune from child pornography charges unless they distribute them to adults. Charging people who can legally have sex with a crime for taking a photo and distributing it among themselves is ridiculous.



the interesting nuance in the law is the difference between the age of "majority" so to speak for SEX itself and for the production of pictures of the act.

example... I used to live in hawaii. age of consent was 14. it was entirely legal for a 50 yr old to have sex with a 14 yr old. in fact, more than once i had distraught parents try to make a complaint for "child rape" because their 14/15 yr old was having sex with a 30 yr old, etc. no crime. they could get a protective order and have it served on the person, and then the person would be prohibited from even having contact with the minor, but other than that... it was 100% LEGAL.

however... it would be illegal for a 17 yr old and an 18 yr old to photograph film their sexual escapade(s) and./or disseminate those photos.

14 and 50 yr having sex? no problem.

17 and 18 yr old memorializing it on film? CRIMINAL.

now, i live in WA. age of consent is 16. 15 and 14 can only have sex with people within so many months of their age. but the same basic principles apply.

but remember... in the age of the internet - one photo is timeless, priceless, and will never go away once it hits to tubes. sex is (often) a one time thang. child can consent to one. not the other.
10.15.2008 1:16am
whit:
in brief, dan


Charging people who can legally have sex with a crime for taking a photo and distributing it among themselves is ridiculous.



as mentioned, not too long ago in hawaii a 14 yr old and a 50 yr old can have sex. should it or shouldn't it be illegal for either the 50 yr old or 14 old to disseminate pictures/video of their sexual escapades? and why is it ok to disseminate it to your (minor or adult?) friends, but not the general public.

like i said, in the case I investigated, the prosecutor and i basically DID make that distinction. it was kids goofing off. but that's a discretion thang, not a criminal law thang. TECHNICALLY< they were producing child porn. stupid as it was.
10.15.2008 1:18am
pmorem (mail):
I'm not sure if it was the same case, but it seems to me that a couple weeks ago one or more boys were arrested for receiving photos under very similar circumstances.

I'm not sure about the overall merits of this prosecution, but it seems to me the relative merits are clear. If the recipient can be prosecuted for something, then it seems reasonable to prosecute the sender as well.
10.15.2008 1:29am
LTEC (mail) (www):
The (Ohio?) legislators are to blame for this, and they must be held accountable. We should not let them get by with making empty speeches all the time instead of taking law-making seriously. Each of them should be asked if they approve of this law, and if not, when they will change it.
10.15.2008 1:35am
Dave N (mail):
the age of the internet - one photo is timeless, priceless, and will never go away once it hits to tubes. sex is (often) a one time thang. child can consent to one. not the other.
Whit has it right. That is the problem. Once a photograph gets on the internet, it is like trying to unbreak an egg--it's impossible to put things back together again or get it off the internet.

I said earlier that I thought this was very stupid, not very criminal. I stand by that. This young woman opened herself up to wondering if for the next 20 or more years, some pedophile is getting his jollies looking at her teen body.

I have prosecuted these kinds of cases. They are disgusting. In addition to the person portrayed, it can and has been used by pedophiles to suggest that what the pedophile wants to do is "normal."

The prosecutor in Whit's case showed a great deal of common sense. From the facts as I understand them, I would not prosecute this young man. Nor would I prosecute the friends she sent them to either. But I sure would do everything in my power to make sure they destroyed their copies and they were not further disseminated.
10.15.2008 2:40am
Fub:
festivus wrote at 10.14.2008 10:07pm:
It's easy to laugh at this kind of prosecution but I'm never jealous of the prosecutor who has to make the call.

Sure, she needs help. Sometimes the juvenile justice system may be the best place for a kid. And if that's not the case here, you still have to confront the problem of the very real creation and distribution of very real child pornography.
Oh, please. The DA who decided to prosecute this is one of two things. Either he is dumber than a post, or he is such a power crazed scumbag that decent human beings shouldn't want to be in the same room with him.

There is no issue of "very real child pornography" here. There is a kid with poor judgment and no knowledge of the law. In other words, an average kid. An adult who sent nude pictures of herself to adult friends might have bad judgment, but wouldn't need to know the law, because there is no law prohibiting the act.

This prosecution is the moral equivalent of charging some minors who drank beer together with "serving alcohol to minors". This kind of bootstrapping is reprehensible legal chicanery.

The prosecutor should be at least laughed out of office. But a better moral outcome would be if he were tarred and feathered by a gang of outraged parents.
10.15.2008 3:44am
Jay Myers:
Did everyone miss this part?


Licking County Assistant Prosecutor Erin Welch said Monday the investigation into the incident remains open, including exploring whether charges will be filed against the minors who received the photos.

So she hasn't ruled out prosecuting other children as sex offenders for simply receiving pictures they probably didn't solicit. What's next?
10.15.2008 4:15am
cls (mail):
Let's admit these laws have gotten out of control and are victimizing the very individuals they were alleged to protect. So, what is anyone going to do about it? In recent days there was this case. In aother case a girl did the same thing, sent it to some boys and the police arrested one boy for possessing child porn. He is now facing becoming an RSO.

Yet who is speaking out on this sort of injustice? No one because they are terrified the feminists and the fundamentalsits will accuse them of being pedophiles. Using this smear these two extremist groups have turned normal people into cowards terrified to speak up. The ones who do speak up tend to parents who found a kid of their's trapped by the law. The rest of the parents turn a blind eye to the injustice and figure it can't be all that bad since their own kid isn't in jail.
10.15.2008 5:23am
Anatid:
Once posted on the internet, always on the internet.

The reason why teenagers, despite being quite sexually functional, aren't considered adults is because they're not. Wait a few more years for some of those higher brain functions to really come online, like long-term planning. A 15-year-old girl might not realize that sending photos of herself to other 15-year-olds could someday mean having her career ruined when she's 30 because a vengeful employee went wandering around a livejournal archive. Hopefully an adult is aware of the future implications when they make the decision to distribute nude photos, but to expect teens to have that kind of foresight is unreasonable.
10.15.2008 7:46am
Sarah (mail) (www):
Of course they're probably also going to (based on other cases in the recent past) ban her from owning any cell phones with texting or picture capabilities, demand access to the cell phones of all the rest of the students in the school (to see if they received the photo,) and so on. If it weren't Licking County (*) I'd be insulting Free Love generation administrators and bureaucrats right about now.

I think most people can manage to agree that both a) what she did was dumb, and she shouldn't have done it, and b) making her a felon and registering her as a sex offender is like killing flies with napalm. I'm not sure she should even face school-related discipline.

(*) Ohio's non-urban counties are very conservative.
10.15.2008 8:20am
Angus:
Surely there is something she can be charged with that does not punish her further but might actually help her. Isn't that the goal of the juvenile justice system?
No, the goal is to get officials elected. And being "soft" on "child porn" (even if the matter isn't really) or "sex offenders" (even when they aren't the dangerous kind) isn't going to win elections. That's why we get increasingly ridiculous blanket laws that encompass more and more people who aren't threats to children or society.

And for the gent who said that only pedophiles would find a 15 year old attractive, I disagree. Now that puberty begins around 9 or 10, most 15 year olds have completed their body development. In recent years there have been a number of femles who became sex symbols in the age 15-16 range: Milla Jovovich, Britney Spears, Miley Cyrus, Hillary Duff, etc. Now, mentally they were/are children and therefore mentally unattractive. But it's ridiculous to say that anyone who found one of them physically attractive is a pedophile.
10.15.2008 9:41am
EconGrad:
Anatid:
Once posted on the internet, always on the internet.

The reason why teenagers, despite being quite sexually functional, aren't considered adults is because they're not. Wait a few more years for some of those higher brain functions to really come online, like long-term planning. A 15-year-old girl might not realize that sending photos of herself to other 15-year-olds could someday mean having her career ruined when she's 30 because a vengeful employee went wandering around a livejournal archive. Hopefully an adult is aware of the future implications when they make the decision to distribute nude photos, but to expect teens to have that kind of foresight is unreasonable.


If this case turns out as the prosecutor no doubt hopes, certainly this young lady will be thankful that the State intervened, rounded up all this potentially-career-ruining-someday-many-years-in-the-future material, and made her a convicted felon and registered sex offender. That way she's guaranteed not to have a career to have to worry about.

Of course that makes me wonder if her record will be sealed when she turns 18?
10.15.2008 10:31am
Anderson (mail):
This reminds me of the old New Yorker cartoon:

Some prep school boys are in a dorm room, gazing fondly at a topless pin-up on the wall, while the resident of the room basks serenely to one side.

The huffy headmaster is regarding this scene through the open doorway, while a teacher explains to him, "We can't very well ask him to take it down -- it's his mother."
10.15.2008 11:13am
Richard Aubrey (mail):
Went to a reunion--fortieth--and among the pix of us as youngsters was a snapshot of one of the bunch. She had been a fabulously beautiful woman, twelve, at least, on a scale of 1-10. Most pix were posed. This was a snapshot, as in "hey, look over here, smile" click.
She had classic features and a stupendous figure, was wearing a swimsuit, standing in a pool and giving a zillion-watt smile at the camera.
She didn't attend. I have a hard time concluding she sent the picture instead. But a harder time concluding somebody else kept it for forty years and brought it.
There is something about showing your hot self off that appeals to some people and apparently it does not decline with age, only with the availability of appropriate pictures.
It would be interesting to know what this kid was thinking (if she was doing what is generally known as thinking) and what she wanted. Could it be said she was trying to fill a lacuna in her life? Was she trying to make somebody hot for her? Jealous? Telling some guy who'd treated her wrong what he was never going to get? The latter has occurred to me as the motivation for the reunion picture.

As a private person, this whole thing is entirely inexplicable to me.

Ditto the prosecution.
10.15.2008 11:47am
Elliot123 (mail):
"A 15-year-old girl might not realize that sending photos of herself to other 15-year-olds could someday mean having her career ruined when she's 30 because a vengeful employee went wandering around a livejournal archive."

True. So, how does making her a registered sex offender help?
10.15.2008 11:55am
Deoxy (mail):
A 15-year-old needs court intervention and counseling because she sent nude photos to some guy friends? Seriously? She'd be in less trouble if she'd simply had sex with every single one of them.


She'd be in NO trouble (legally speaking) if she had sex with every one of them.

That point, in and of itself, makes this whole thing utterly ridiculous.
10.15.2008 12:21pm
Tony Tutins (mail):

illegal use of a minor in nudity-oriented material

First, is this actually meant to be child pornography? If minor+nudity=felony, my parents can never move to Ohio, because one of their home movies features my little brother running screaming from the bath. (At that time he had an aversion to water. He also eschewed all vegetable foods, living solely on meat, eggs, and butter. He's always been skinny as a rail, however.)

Second, how can you use a law meant to protect minors against a member of the class the law is meant to protect? Isn't that like prosecuting rape victims for conspiracy to commit rape?
10.15.2008 12:46pm
Richard Aubrey (mail):
Tony. Only if the rape victim initiated it. Or wait.... No. Um. Only if the rape victim raped herself...? Gimme a minute here.

When you think about it, how many million babies' buttcheeks are on Shutterfly?
10.15.2008 12:54pm
EconGrad:
A case for jury nullification if ever there was one.
10.15.2008 1:04pm
Angus:
If minor+nudity=felony, my parents can never move to Ohio, because one of their home movies features my little brother running screaming from the bath.
Under modern "zero tolerance" laws, such things can and have been classified as child pornography, with arrests and jail sentences involved. A quick google search turned up a Salon.com article on this phenomenon. It's all part of the modern push to eliminate all common sense from criminal justice.
Link
10.15.2008 1:25pm
pauldom:

Under modern "zero tolerance" laws, such things can and have been classified as child pornography, with arrests and jail sentences involved. A quick google search turned up a Salon.com article on this phenomenon. It's all part of the modern push to eliminate all common sense from criminal justice.

I remember reading about such cases and wondering how police in the 21st century could possibly think that child pornographers were grandmas with film cameras. Surely modern child pornographers would use digital cameras, not film dropped off at the local Wal*Mart.

My spouse and I have a series of cute pics taken during our kids' potty training days that we have been terrified about owning ever since. (But still unwilling to destroy--they truly are cute.)
10.15.2008 1:55pm
pauldom:
Ahem. Unwilling to destroy, but of course we would destroy any photos that might accidentally have been taken that broke the law in any way, because we would do anything at all to protect our children from all possible threats.
10.15.2008 1:59pm
Richard Aubrey (mail):
Paul.
I am confident they have already been destroyed, or, more likely, not taken in the first place.
You're clean.
10.15.2008 2:37pm
Richard Aubrey (mail):
Just reread the last 'graf. Missed something first time around.

INCARCERATED?!?!?!?!?!?

You have GOT to be bleeping me. Who is this moron? Why hasn't he dropped dead of some terrible, loathesome, and painful disease? How come he's allowed to breathe? Didn't he graduate from law school?...um, scratch that
Subsitute "doesn't he have the brains God gave an immature garden slug?"
Are people pointing at him and laughing? Or throwing rotten vegetables? Doing donuts on his lawn? Figuring out ways to frame his kids for something terrible?
If he runs for dogcatcher, let's let the dogs vote and then put him in the cage with the rabid mastiff. The mastiff, at least, would have a sense of justice and proportion, not to mention a substantially higher IQ.
10.15.2008 3:37pm
Dilan Esper (mail) (www):
Whit has it right. That is the problem. Once a photograph gets on the internet, it is like trying to unbreak an egg--it's impossible to put things back together again or get it off the internet.

The problem is that there's no way to prevent that harm without seriously impinging on the girl's free expression rights.
10.15.2008 3:53pm
Anatid:
Do minors have free expression rights? I know that t-shirts and symbols related to drugs and gangs were strictly prohibited at my high school.

While we can all agree that a prison sentence is ridiculous, I wonder what sort of counseling would help convince teens that privacy is important?
10.15.2008 6:03pm
whit:

The problem is that there's no way to prevent that harm without seriously impinging on the girl's free expression rights.



the point is that we don't believe juveniles can "consent" to all sorts of stuff.

last i checked, the right to copulate with whom you want is pretty well established. but a 13 yr old doesn't have that "right".

this is similar.

the interesting part is that we differentiate between the age one can have sex (give consent) anywhere from 14 and up, but we say the age you can consent to produce porn inviolving yourself (or consent to others making it) is 18.
10.15.2008 6:10pm
whit:

I remember reading about such cases and wondering how police in the 21st century could possibly think that child pornographers were grandmas with film cameras. Surely modern child pornographers would use digital cameras, not film dropped off at the local Wal*Mart.


because criminals in the 21st century remain friggin' morons. at least the ones that get caught.

it (used to ) amaze me that with easily available strong encryption, that those that had child porn files on their computers don't (usually) encrypt them. but they are idiots. what do you expect?

the smart ones often don't get caught.



My spouse and I have a series of cute pics taken during our kids' potty training days that we have been terrified about owning ever since. (But still unwilling to destroy--they truly are cute.)



naked pictures of kids are not child porn. read the statutes.

being nekkid is neither sufficient nor necessary to qualify as child porn. plenty of people have tons of nekkid pic's of their kids. that's not illegal.
10.15.2008 6:13pm
Dilan Esper (mail) (www):
the interesting part is that we differentiate between the age one can have sex (give consent) anywhere from 14 and up, but we say the age you can consent to produce porn inviolving yourself (or consent to others making it) is 18.

The age of consent argument begs the question. If you define the conduct involved as "sex" you can get to the answer that we don't allow a 15 year old to do this for the same reason we don't allow a 15 year old (in some jurisdictions) to have sex.

But what if you define the conduct as "speech"? We certainly do allow 15 year olds to speak. Indeed, as far as I know, outside the school context they have full free speech rights. (It doesn't get litigated very often, but I assume a law that, e.g., banned 15 year olds from attending political rallies or speaking about politics in a public forum would be unconstitutional.)
10.15.2008 6:27pm
whit:
i agree, dilan. *if* we decide the production and dissemination of porn is "speech" then there's a problem.

the rub is that we define CHILD porn as a specific thing. NOBODY has a right to produce it.

Can speech be contraband? apparently, in the case of child porn - it can.

That's the nut of the issue.

For the sake of practicality, understand that if we allow the production of child porn, then there will be dissemination. after all, information yearns to be free.

We (society and the law) have defined child porn as so odious that the mere possession of it (let alone production) is a crime. Heck, I made sure I scrubbed my computer after every child porn related case I did, so I wouldn't even have vestiges of the file on my hard drive.

I generally think, fwiw, that our speech laws (which are the freest in the world) are still too restrictive. I think the war on domestic violence has played a part, as has political correctness and the "let's be like europe" crowd.

But I do think that there is no constitutional problem with defining child porn as contraband, and thus nobody has the right to express it.
10.15.2008 6:39pm
Pauldom:
@Whit:

because criminals in the 21st century remain friggin' morons. at least the ones that get caught.

Of course. I'm always forgetting that part.

naked pictures of kids are not child porn. read the statutes.

being nekkid is neither sufficient nor necessary to qualify as child porn. plenty of people have tons of nekkid pic's of their kids. that's not illegal.

Yeah, but an unlucky few apparently get in trouble for it anyway (link from Angus). What sparked our concern was a news story about a grandma who took bathtub pics of her preschool-aged grandkids and was then forbidden by DCF to see them. If I get a chance I'll try to google up that story.

Of course if we all lived our entire lives according to tv news, our world would be much different.

Thanks for the reassurance.
10.15.2008 8:27pm
whit:

Yeah, but an unlucky few apparently get in trouble for it anyway (link from Angus). What sparked our concern was a news story about a grandma who took bathtub pics of her preschool-aged grandkids and was then forbidden by DCF to see them. If I get a chance I'll try to google up that story.

Of course if we all lived our entire lives according to tv news, our world would be much different.



and we can find examples of injustice and extreme (ridiculous) and usually overturned bad decisions in almost any venue, and associated with ANY type of law.

this is a tactic of many when they are attacking a law. find some (in a country of 300+ million people, not hard to do) extreme and ridiculous example of the law being (stupidly) applied... QED the law is bad policy. that's not exactly compelling argumentation, but we all do it. heck, Reason (one of my favorite magazines) does this frequently.

nobody argues that there shouldn't be a law against assaulting somebody. i can guarantee you if you looked, you could find tons of really dumb applications of same law.


and god knows the CPS types have been known to overreact in all sorts of cases.

an interesting thing i learned in one of my classes (and has been borne out by experience) is in regards to child development books. these books, have tons of naked pictures of children. and are of course perfectly legal to buy, possess, and sell.

nearly every person we do a search warrant for child porn ALSO has one of these books. it's like a "gateway book" lol.

The issue is not nudity in and of itself.

i don't deny that stuff like what happened to the grandma may have happened. that's reality. the law is administered by people. and CPS (DCF etc. i assume if a version of it) is full of (dumb) people.

in the long run, it generally works out. i would not fear AT ALL taking bathtub pics of my kids. i would be more hesitant to send the film in for processing because i don't want some perv working at the film processing place to make copies for his own use, etc. vs. worrying that they were going to call The Man (tm) and report me for child porn.

for what;s it worth, there are still kids/families that are nude in the house nearly 24/7 - they are called nudists. and they take pictures too.

who uses film these days anyway???
10.15.2008 8:44pm
Dilan Esper (mail) (www):
We (society and the law) have defined child porn as so odious that the mere possession of it (let alone production) is a crime. Heck, I made sure I scrubbed my computer after every child porn related case I did, so I wouldn't even have vestiges of the file on my hard drive.

That's true, whit, but doctrinally, what we have done is carved out a narrow exception to the First Amendment for a type of speech that is usually made through nonconsensual or exploitative conduct with a minor. And we permit it to be contraband because it is necessary to dry up the market for it.

The problem is, we have a subset of the subset that is not made through nonconsensual or explotative conduct, and is not going to create a new market for child porn.

And since we are supposed to err on the side of free speech, it seems to me that YOUR side has to show why that shouldn't receive any protection. The fact that some other type of speech shouldn't be protected isn't enough.
10.15.2008 8:44pm
whit:

That's true, whit, but doctrinally, what we have done is carved out a narrow exception to the First Amendment for a type of speech that is usually made through nonconsensual or exploitative conduct with a minor. And we permit it to be contraband because it is necessary to dry up the market for it.

The problem is, we have a subset of the subset that is not made through nonconsensual or explotative conduct, and is not going to create a new market for child porn.

And since we are supposed to err on the side of free speech, it seems to me that YOUR side has to show why that shouldn't receive any protection. The fact that some other type of speech shouldn't be protected isn't enough


#1 it's not "my side". i didn't make the law. i was merely telling you what the law is.

#2 (far more important). you are missing the point. The law (rightly or wrongly) sets an age of consent because the theory is that a person below that age CANNOT consent to have sex. even though, for all practical purposes they do.

you are assuming that just because the child decided herself (apparently) to make the child porn that she could still CONSENT to do so.

for all i know, traci lords might have argued that her commercial production of child porn was consensual. she's certainly made a decent career out of it. regardless, she COULDN'T consent to doing so. you're also wrong about the point about creating a new market not existing in this place. making child porn is illegal because it... wait for it... creates a contraband product ... child porn. and the idea that this girl's porn product wouldn't get out into the public is a silly assumption on your part.

it gets back the basic points. society does not deem sub 18 yr olds as capable of consenting to producing child porn. and regardless of what intended purpose they claim in doing so, they are still creating contraband.
10.15.2008 9:24pm
Bill McGonigle (www):
The conflation of nudity with pornography is a good discussion, but I'm even more aghast that they can classify owning a digital camera as 'possession of criminal tools'.

I can think of a way to commit a crime with almost anything, so if everything is a criminal tool, then nothing is a criminal tool.

Wow, misapplying two laws at once.
10.15.2008 10:20pm
whit:

The conflation of nudity with pornography is a good discussion, but I'm even more aghast that they can classify owning a digital camera as 'possession of criminal tools'.

I can think of a way to commit a crime with almost anything, so if everything is a criminal tool, then nothing is a criminal tool.

Wow, misapplying two laws at once.


nope. you are misunderstanding these laws.

items that are OTHERWISE lawful can often be criminal under various contraband laws WHEN USED FOR CRIMINAL ACTIVITY and are an additional charge.

nothing new, and assuming that the main charge is valid (for the sake of argument), the criminal tool thang is not missaplied.

example: i arrested a guy a few months ago after my keen detective sense developed PC cause to believe he committed burglary. and when i searched him i found small chips of porcelain from a spark plug in his pocket. guess what these are used for? (look it up). yes, he got charged with possession of burglar's tools. noted that in this particular burglarly he USED this tool to commit the burglary.

these tools are basically contraband regardless. iow, there is NO lawful reason anybody would carry around small chips from a spark plug in a film canister in their pocket unless they were planning on breaking glass with them.

contrast with plastic baggies. perfectly legal. but if you have 2 kilos of cocaine on you AND 600 plastic baggies, they are a paraphernalia charge. they are TOOLS used to package.

if i catcha guy car prowling, and he has pry tools, screwdriver, and shaved keys on him - that is also burglar tools.

pry tools and a screwdriver are otherwise innocent (iow need to connected to an act, even if not used IN the act, at least possessed while doing the act), and the shaved keys are pretty much a gimme burglar tool, since there is NO valid legal reason to have them.

the point is that otherwise lawful and innocuous objects can be criminal to possess in certain circumstances.



I can think of a way to commit a crime with almost anything, so if everything is a criminal tool, then nothing is a criminal tool.


that doesn;'t matter. there are two types of objects in this regards - criminal per se (see: shaved keys or porcelain chips), and criminal AS USED, which CAN be almost anything. it depends on how you use them.
10.16.2008 12:17am
David M. Nieporent (www):
#2 (far more important). you are missing the point. The law (rightly or wrongly) sets an age of consent because the theory is that a person below that age CANNOT consent to have sex. even though, for all practical purposes they do.

you are assuming that just because the child decided herself (apparently) to make the child porn that she could still CONSENT to do so.
Uh, you're misusing a word there. "Consent," by its very definition, requires at least one other actor in addition to the one we're discussing. The very concept of "consent" doesn't apply, one way or the other, when a person takes pictures of himself or herself.

We may be able to criminalize it, but it wouldn't be a question of "consent."
10.16.2008 6:00am
Dilan Esper (mail) (www):
for all i know, traci lords might have argued that her commercial production of child porn was consensual. she's certainly made a decent career out of it. regardless, she COULDN'T consent to doing so

You are assuming your conclusion here. I understand current law, but it isn't based on consent, it is based on there being a narrow exception to the First Amendment to quell the market for material that harms the people involved in its production. (Read New York v. Ferber and Ashcroft v. Free Speech Coalition if you don't believe me.) A minors can't consent rationale has nothing to do with current child porn law.

And minors can, in fact, consent to speak. That's the point here.

(By the way, Traci Lords is far different because her's was not a 1-person production, and the others involved in it had no constitutional right to exploit children. The issue we are talking about here is a 15 year old's right to film herself.)
10.16.2008 2:50pm
whit:
if the law doesn;'t recognize the issue as consent, fair enough. i still think it's a valid analogy. although not a correct legal analysis.

the point is a 13 yr old can WANT to have sex, can willingly participate, and feel it is their right of "free expression" (after all, doesn't lawrence v. texas essentially make the argument that sexual conduct is some sort of constitutionally protected expressive act? that goes to one's "essence" or some such claptrap?).

i agree the traci lords case is distinguishable, in that others (including adults) were involved, and it was a commercial enterprise, but it was still an issue of EXPRESSION. she WANTED to participate, and "express herself" and get paid handsomely, but the law says Nyet.

in the instant case, i guess you are right, consent isn't really an issue, since she did the act herself. the case I had would be a better example, since it was minors taking pictures of each other engaged in sexually explicit behavior.

i guess the real issue is (?) does the right to "free expression" in filming oneself in sexually explicit acts/poses TRUMP the authority of the state to prevent the creation of child porn.

the practical problem is that if you allow the production of child porn, if self-directed and nobody else involved, it is GOING TO GET disseminated. it WILL get out there. that's a reality we have to face. especially in the age of the internet.

so, the idea is that we nip it in the bud... regardless of how it is made (even if self-directed individual act), we draw a bright line and say it is contraband and illegal period. and your right to free expression does not include the right to create contraband.

there is essentially no harm no foul, if she creates her own child porn (and it IS child porn), and watches it herself and nobody else ever sees it. the problem is that that's a pipe dream.

do we limit a VERY narrow form of free expression, that specifically includes a RECORDING of the act?

a 16 yr old (in my state), is perfectly free to schtup whomever she likes, however often she likes. we only say to her that whatever sexual acts (even self-directed) you engage in - DON'T film it.

but you are correct. i think the consent thing is kinda sorta ok as an analogy for understanding, but not as legal analysis. my bad.
10.16.2008 4:56pm
Oren:

There are a lot of 15-year-old kids who see nothing wrong with sending nude cell phone emails. Either we need to change the law, or re-educate millions of teenagers.

Absolutely. The options you have listed completely exhaust the solution space.
10.16.2008 8:47pm
Jon Faria:
Note that by the dictates of the federal Adam Walsh Act, the state has very little if any discretion not to require her to register as a sex offender...
10.21.2008 10:43pm