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Sometimes "justice" is just absurd
Posted by: McQ on Saturday, February 10, 2007

Florida is where this bit of lunacy took place. From CNET news:
What: Teenagers taking risque photos of themselves are prosecuted for violating child pornography laws.

When: Florida state appeals court rules on January 19.

Outcome:
A 2-1 majority upholds conviction on grounds the girl produced a photograph featuring the sexual conduct of a child.

What happened, according to court documents:

Combine unsupervised teenagers, digital cameras and e-mail, and, given sufficient time, you'll end up with risque photographs on a computer somewhere.

There's a problem with that: Technically, those images constitute child pornography. That's what 16-year-old Amber and 17-year-old Jeremy, her boyfriend, both residents of the Tallahassee, Fla., area, learned firsthand. (Court documents include only their initials, A.H. and J.G.W., so we're using these pseudonyms to make this story a little easier to read.)

On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified "sexual behavior." The two sent the photos from a computer at Amber's house to Jeremy's personal e-mail address. Neither teen showed the photographs to anyone else.

Court records don't say exactly what happened next—perhaps the parents wanted to end the relationship and raised the alarm—but somehow Florida police learned about the photos.

Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.
The defense claimed:
Amber's attorney claimed that the right to privacy protected by the Florida Constitution shielded the teen from prosecution, an argument that a trial judge rejected.
On appeal, the appeals court rejected it as well. From the majority opinion:
[Judge James]Wolf speculated that Amber and Jeremy could have ended up selling the photos to child pornographers ("one motive for revealing the photos is profit") or showing the images to their friends. He claimed that Amber had neither the "foresight or maturity" to make a reasonable estimation of the risks on her own. And he said that transferring the images from a digital camera to a PC created innumerable problems: "The two computers (can) be hacked."
Well of course computers can be hacked. But since when does a court rule on a possibility of something happening vs. what has happened? And why is it germane to anything anyway?

I'm with the dissenter on this one:
Judge Philip Padovano dissented. He wrote that the law "was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child's right to privacy under Article 1, Section 23 of the Florida Constitution."
An expansion of that, and addressing Wolf's point, Padovano said:
Although I do not condone the child's conduct in this case, I cannot deny that it is private conduct. Because there is no evidence that the child intended to show the photographs to third parties, they are as private as the act they depict...

The majority concludes that the child in this case did not have a reasonable expectation that the photographs would remain private. To support this conclusion, the majority speculates about the many ways in which the photographs might have been revealed to others. The e-mail transmission might have been intercepted. The relationship might have ended badly. The boyfriend might have wanted to show the photo to someone else to brag about his sexual conquest. With all due respect, I think these arguments are beside the point. Certainly there are circumstances in which the photos might have been revealed unintentionally to third parties, but that would always be the case.
Completely beside the point in my opinion. To illustrate that point, Padovano writes:
The method the child used to transmit the photos to her boyfriend carries some danger of disclosure, but so do others. If the child had taken a printed photograph and placed it in her purse, it might have been disclosed to third parties if her purse had been lost or stolen.
Precisely. The transmission is irrelevant as is the "possibility" that it might come into the possession of a third party. What should matter is the intent of those involved:
The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. Certainly, an argument could be made that she was foolish to expect that, but the expectation of a 16-year-old cannot be measured by the collective wisdom of appellate judges who have no emotional connection to the event. Perhaps if the child had as much time to reflect on these events, she would have eventually concluded, as the majority did, that there were ways in which these photos might have been unintentionally disclosed. That does not make her expectation of privacy unreasonable.
And, in my opinion, it is on that "expectation of privacy" on which the court should have dismissed the case.
 
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Comments
"He claimed that Amber had neither the "foresight or maturity" to make a reasonable estimation of the risks on her own."

Except, evidently, the risk of criminal prosecution. So now a 16 and a 17 year old are convicted sex offenders, purveyors of child pornography. Will they have to register as sex offenders? I hope I am correct in assuming that they were not prosecuted as adults, although it would not surprise me to find out they were prosecuted as adults for taking pictures of themselves as minors.

 
Written By: timactual
URL: http://
On this, a rare agreement. Clearly there is an expectation of privacy reagrding such events, and should be reasonably extended as technology changes.

To judge on "what-if’s" a slippery slope to the end of what little freedoms we still have.

Well said.
 
Written By: Rick Day
URL: http://goplobby.org
Whatever happened to "Mens Rea"? I ain’t no lawyer, but I always(well, not literally always, but for a long time) thought that intent was a necessary element of a crime.
 
Written By: timactual
URL: http://
Hey Rick,

I keep wondering when you will cick into figuring out what a libertarian blog is. So far you are batting a thousand.

 
Written By: capt joe
URL: http://
I’d like to go on a triad here, but it seems that Rick managed to cover it with a few keystrokes!

Lets hope we can get on some juries and help fix some of the daily crap going on in this nation. It may not totally succeed, but for sure will one weapon against the tyranny being forced upon us.
 
Written By: TC
URL: http://
This proves Dickens was right “The law is an ass” since when did 17-year old’s become a Child. Is there any common sense in the legal system. Real criminals are running loose and the legal system wastes resources on this idiotic prosicution. Can you define “PRIG
 
Written By: James E. Fish
URL: http://
I’ll be interested to see if there are any follow-up charges of "statutory rape", and against whom.

 
Written By: SDN
URL: http://
This proves Dickens was right “The law is an ass” since when did 17-year old’s become a Child.

Uh dude, since we have this thing called LAW.... by LAW you are child until 18, by-and-large. Unless you’re an emancipated minor....see you can’t get a tattoo at 17, join the Army, smoke, get a credit card, that sort of thing. Get real, unless Jim Fish is a 17 y.o. try to think back to YOUR teenaged days and tell me how "adult" you were?

Is this silly? Yes. Is it a travesty, Yes. But at some levels it’s Justice...note Mama y Papa of the girl, IIRC, decided to make a case out of this...Their "Princess" had been naughty, UNPOSSIBLE, it must have been her boyfriend. So they call the Militsia and the Millicents do what the Millicents do, they made a case, just like Mama y Papa wanted, UNFORTUNATELY it included their Princess too.

Had the parents behaved as PARENTS rather than relying upon the State to do their dirty work for them, their little girl and her paramour would be OK. Instead, they’ve reared a Child Pornographer and Sex Criminal. I betcha they’re wishing they’d tried gronding her and talking to her about her conduct rather than calling the Cops...

So part of me says, "Yes, a rough Justice WAS done here."
 
Written By: Joe
URL: http://
Unless you’re an emancipated minor....see you can’t get a tattoo at 17, join the Army, smoke, get a credit card, that sort of thing.
Yeah, but who gets in trouble for this? If a kid gives himself a tattoo do we convict him of something.

Sorry, this law is insane.
 
Written By: Don
URL: http://
Don, I guess...it’s insane.... it was drafted in such a way that CONSENSUAL acts and photography and transmission was illegal....how would you amend it to make it more sane?
 
Written By: Joe
URL: http://
Joe,

Not quite sure how I would write the law. This sorta law is tricky. My general feeling is that when the ’victims’ are also the ’perpertrators’, and when they are close in age (i.e., not a 17 y.o and a 12 y. o.), then they should get a pass.

Other aspects of the law I don’t like is the arbitrary age limits. It’s fine for a 40 year old to nail an 18 year old, but a violation for an 18 year old to nail a 17 year old? As a 40-something I guess I should be fine with that, but I find it odd.

 
Written By: Don
URL: http://
Not quite sure how I would write the law. This sorta law is tricky. My general feeling is that when the ’victims’ are also the ’perpertrators’, and when they are close in age (i.e., not a 17 y.o and a 12 y. o.), then they should get a pass.
Well here’s a clue from someone that deals with this sort of thing, it IS TRICKY, and until someone is willing to craft some specific language that covers what WAS intended, filming, reproducing sex involving underaged persons, and the transmission of those images, and the storage of those images, "Crazy/insane" Law is what you get, because it is tough drafting to cover the eventualities.
I don’t like is the arbitrary age limits. It’s fine for a 40 year old to nail an 18 year old, but a violation for an 18 year old to nail a 17 year old? As a 40-something I guess I should be fine with that, but I find it odd.

Dude to an extent ANY age limit is arbitrary, but w/o them we end up with Lot arguing with God, don’t we, "Well Lord if I can find 100 good men in Sodom....Well Lord if I can find ONE good man..." If 18 is Ok, how about 17.5 and if 17.5 is OK, why not 17 and if 17 is fine why not 16.5...pretty soon you’re at 13 and wondering what happened. Society needs to provide SOME limits, even if they are to an extent arbitrary. So by-and-large, we choose 18 as the Age of Majority...16 for driving, 16 for sex-within limits, in most jurisdictions, but othersie 18 or there abouts, 17 y.o.’s IF they have parental consent for tattoos, joining the Army, donating blood,...as I say it’s somewhat arbitrary but it provides a necessary limit. It’s WRONG for a 40 y.o. to nail an 18 y.o., but not ILLEGAL, but it would be illegal, in many jurisdictions, for the 40 y.o. to nail a 17 y.o..
 
Written By: Joe
URL: http://
Well here’s a clue from someone that deals with this sort of thing, it IS TRICKY, and until someone is willing to craft some specific language that covers what WAS intended, filming, reproducing sex involving underaged persons, and the transmission of those images, and the storage of those images, "Crazy/insane" Law is what you get, because it is tough drafting to cover the eventualities.
Unless you can show that the legislature intended for this law to cover a situation where underage lovers willingly created and transmitted sexually charged images of themselves, as opposed to the case of an adult creating sexually charged images of a minor who was unwilling (either in fact or by defintion), then this outcome can only be described as a gross miscarriage of justice.

Not that I think you care about those, as long as the law is followed within some definable bounds. Not the intended bounds, just whatever you can define with a straight face.
and until someone is willing to craft some specific language that covers what WAS intended
The burden should be on the prosecution to demonstrate to the jury that it’s interpretation of the law is what was intended by the legislature, the defense should be able to present alternative interpretations, and the jury should decide which is the more valid.

A fully informed jury, one deciding on the law, it’s application to the facts of the case, and what those facts are.

The jury as the Founder’s knew it, a thing inherent to due process.

You are reprehensible scum, Joe.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://

 
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