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November 11, 2009

Can Carrie Prejean now use her "child porn" sex tape to her advantage?

In this post yesterday I discussed some of the federal child pornography laws implicated by the acts of  Former Miss California USA Carrie Prejean in making and distributing a "sex tape" at the tender age of 17.  Following up these points is this on-line commentary, titled "The Carrie Prejean sex tape is child pornography," which concludes with this intriguing bit of legal analysis and advice for Prejean:

You've got to be 18 to exercise your constitutionally protected rights to free speech by stripping off and having sex of any kind on camera. If you're a day below that age then it isn't free speech, it's child pornography. And those who sell it, those who distribute it and even, in certain places, those who watch it inadvertently can go to jail.

All of which leaves open an intriguing option for Carrie Prejean herself if she wishes to pursue it.  If it really is true that the pageant's lawyers played the tape in [a] meeting, rather than just revealing its existence, then they themselves are guilty of possession of (and quite possibly production of, given the way the law works about how computers reproduce images as they play them) child pornography.  Not that this would earn her any money, but seeing them go down for years as a result would be some sort of revenge, wouldn't it?

Of course, regular readers of this blog should now know that this commentary does not fully capture what Prejean might now hope to achieve through existing federal child porn laws.  As detailed in prior posts (some of which are linked below), a number of federal courts have ordered large restitution payments from child porn downloaders to the children/victims portrayed in the illegal images that have been unlawfully possessed.  So, were Prejean to convince federal officials to seek to prosecute some of the folks who have viewed and distributed her "child porn" sex tape, she might be able to seek significant restitution as the victim of these child porn offenses.

Of course, as I explained in my prior post about the Prejean sex tape, I am not seriously advocating that this matter become fodder for federal prosecutions.  Rather, I am simply eager to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Some recent related child porn posts:

November 11, 2009 at 10:46 AM | Permalink

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Comments

How do you reconcile her being a victim with the numerous cases of similar victims being prosecuted for producing and distributing child porn?

Seems like she'd be cutting off her nose to spite her face.

Also, presumably the lawyers were present (as well as her mom heh heh). Wouldn't they also be liable for possession or not reporting?

Posted by: . | Nov 11, 2009 10:50:25 AM

If it is in fact the case that she could have criminal exposure in connection with the tape, one wonders how close to the line (if not over it) the lawyers on the other side got in terms of the disciplinary rule against threatening to bring a crime to the attention of the authorities in order to gain an advantage in civil litigation. Obviously you'd have to know a lot more than I've seen reported about exactly what was or wasn't said or suggested to have an informed opinion about whether that line was actually crossed, but whatever one might say about the extent to which hardball settlement negotiation tactics are or are not "blackmail" in a metaphorical sense, that's the one thing you're really not supposed to be doing as a matter of actual black-letter professional responsibility law.

Posted by: J.W.B. | Nov 11, 2009 11:19:02 AM

ANY law can be twisted, at least in fantasy, to make it seem ridiculous. That this is also possible in the area of child porn scarcely means that we should do away with child porn laws or create gigantic loopholes in them.

Posted by: Bill Otis | Nov 11, 2009 12:35:04 PM

Funny. When I advocate total e-discovery and counterattack on the adverse lawyer, I am shunned, called unethical and crazy. Harvard grads run from me at parties. When a lawyer does it, it is an "intriguing bit of legal analysis and advice for Prejean:"

Posted by: Supremacy Claus | Nov 11, 2009 1:37:58 PM

Yes, she could attempt to have those who possess copies of her tape prosecuted, but they in turn could make the case that Ms. Prejean herself should be prosecuted as well.

After all, she was not an unwilling victim, but rather the producer and distributor of the child porn in question.

And there have been cases of underage females being prosecuted for distributing nude photos and videos of themselves to boyfriends.

Case in point, six teens in Pennsylvania were brought up on child porn charges in January. Three boys and three girls. The child porn in question involved the three girls.

Guess who had more charges brought up against them?

The girls. The boys were all charged for possesion of child pornography, but the girls were charged for production, dissemination, AND possession of child pornography, even though the nude photos in question were of themselves.

http://www.msnbc.msn.com/id/28679588

So for those hoping that Ms. Prejean seeks out a pound of flesh from the ex-boyfriend and TMZ, be careful what you wish for... she could have to sacrifice three pounds of flesh herself in the process.

Posted by: Bob Smith | Nov 12, 2009 10:50:53 AM

To J.W.B. - Laws involving child porn (and drugs, by the way) ARE being twisted. And the consequences are very real to society and to these individuals being unfairly prosecuted. Your comment indicates that you are uneducated about both the current laws and how prosecuters are pursuing cases using child porn laws. Many innocent people are having their lives ruined by laws that make no sense, protect no one and keep law enfocement from properly using their finite resources to monitor people who are actually a threat to children. These laws need to change.

Posted by: Stacy | Nov 12, 2009 3:00:12 PM

She wants freedom of speech, they let you talk a lot in pedophile jail . Seems that the most judgemental people are the people that are trying to hide something. Like a magiciaian , they get you to look over there why they do something right under your nose. She is sick. She is against anything American. She should be sent to GitMO!!

Posted by: American Girl | Nov 12, 2009 6:18:45 PM

She wants freedom of speech, they let you talk a lot in pedophile jail . Seems that the most judgemental people are the people that are trying to hide something. Like a magiciaian , they get you to look over there why they do something right under your nose. She is sick. She is against anything American. She should be sent to GitMO!! Teacher of human rights!

Posted by: American Girl | Nov 12, 2009 6:19:29 PM

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