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November 12, 2009

"Did Pageant Officials Distribute Child Pornography to Smear Carrie Prejean?"

The title of this post is the question in the headline of this provocative commentary, which seeks to dig deeper into how the Carrie Prejean "sex tape" surfaced and whether crimes were committed in the tape's distribution.  Here is a snippet from the commentary:

The video came to light after the Miss California pageant’s lawyers showed some of the tape in court, causing Prejean to drop her lawsuit against the contest in “about fifteen seconds.”  But the court attendees — including Prejean’s mother — were not the first to see the film since the break-up. The celebrity gossip website TMZ has announced it “obtained the video months ago.”  Which raises the question: how and from whom was the film”obtained”?  In this case, it seems prudent to ask the Latin question, Cui bono — who benefits? The beauty contest’s lawyers, who took Prejean’s crown under questionable circumstances, were locked in a bitter legal battle with a sympathetic defendant.  Did pageant officials leak child pornography to the media in an effort to destroy a legal adversary?

Prejean sued the pageant in late August. If the lawyers sent a copy of the allegedly illegal tape to TMZ in September, that would qualify as “months ago.”  E! News added another wrinkle last week, noting that unnamed “peddlers” offered the video as an “exclusive” months ago for $10,000 — and even pornographic websites would not touch it. Nik Richie of TheDirty.com told E, “our lawyers wouldn’t let us put it on the site.”

If any cash changed hands in any of the various transactions leading from the boyfriend to the barristers, that would constitute trafficking in child pornography....

The distribution chain begins with the boyfriend — but if he is like most teenage boys, he probably passed off duplicated copies to his 20 closest friends within an hour, a pointed lesson for teens about the perils of sexting. Any of its recipient may have approached the Miss California USA pageant or these websites — or the pageant may have subsequently contacted the websites....

If Carrie was indeed 17 at the time, all parties should be investigated and, if grounds exist, prosecuted to the fullest extent of the law. 

Let me repeat again what I have said in prior post about the Prejean sex tape: I am not seriously advocating that this matter become fodder for federal prosecutions.  Rather, I am 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.  And, as the linked post reveals, others may indeed be eager to use broad federal criminal prohibitions in order to turn this ugly matter into a federal case.

Some recent related posts:

November 12, 2009 at 11:01 AM | Permalink

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Comments

Ugh. From the first paragraph, it's another teabagger rant blog. If you goto the cbsnews.com link, you'll see this

"Prejean, the former Miss California USA, says she made the sex flick **of herself** **alone** when she was 17, **for** an ex-boyfriend."

If this sentence is factually correct (since it quotes Prejean herself), then Prejean was the subject of the tape *and* the videographer. Only when the video was completed did she give it to her ex. In other words, Prejean *produced* child porn then *distributed* it.

Posted by: . | Nov 12, 2009 11:05:53 AM

Ahahha. Oh wow.

"Carrie Prejean's ex-boyfriend -- the guy to whom she sent the XXX solo video -- tells TMZ Carrie and company called him last week and tried getting him to "lie" and say she was 17 when she shot the video.

During an audio interview with TMZ, the man -- who asked us not to reveal his identity -- says Carrie sent him the video when they were involved with each other in 2007. He says Carrie sent him numerous explicit videos and insists the one in question was shot when she was 20.

We have verified this is indeed the guy to whom Carrie sent her solo video -- which ultimately torpedoed her settlement with Miss California USA."

NSFW link
http://www.tmz.com/2009/11/12/carrie-prejeans-ex-boyfriend-sex-tape-lie-age/print

Posted by: . | Nov 12, 2009 11:13:13 AM

Doug. Count me among those who want to see her prosecuted if the allegations are true.

Posted by: Daniel | Nov 12, 2009 11:37:03 AM

Daniel, you've never explained why it would be good public policy to ruin her life.

Posted by: Marc Shepherd | Nov 12, 2009 1:05:47 PM

Ruin her life? She should be investigated and prosecuted like any other individual would be for alleged production and distribution of child pornography. Although, the story now is that she was 20...

Besides, she's ruined her own life already.

Posted by: Bernie | Nov 12, 2009 5:36:39 PM

DAB, thank you for your blog. Those who read the comments on my post will see I agree the application of this law is overly broad when applied to teens who engage in sexting or filming themselves. However, if the tape was produced when Prejean was underage, and if someone sold or leaked it in order to cause her further emotional harm (or bolster their changes of a legal settlement), I believe recourse to legal satisfaction is in order.

Thank you again for your scholarly blog.

And to the anonymous first commenter -- I don't even like tea. :)

Posted by: Ben Johnson | Nov 12, 2009 6:15:52 PM

Ruin her life? She should be investigated and prosecuted like any other individual would be for alleged production and distribution of child pornography.

Child porn prosecutions ruin lives. Destroy them. That may be fine when the perpetrator has done something terrible enough to merit such a fate. Prejean has not (even assuming the video was made at age 17). I am no fan of hers, but she doesn't deserve to be ruined.

Besides, she's ruined her own life already.

How so? Get serious. I mean, compared to a five-year mandatory minimum, a felony conviction, and lifetime registration as a sex offender? All that for making a naughty video of herself and sending it to her boyfriend?

Posted by: Marc Shepherd | Nov 13, 2009 9:40:07 AM

Correction...videos, plural. According to the boyfriend, there are more.

Though I think the application of child pornography laws in this case (or any sexting case) would be woefully stupid as a matter of policy, I agree with Daniel on this one. If we're going to enforce a law in a stupid manner, we have to enforce it universally stupidly. That's basic fairness, for good or for ill.

One thing I think is often missed in this debate is the injustice to other citizens. We as citizens agree to abide by laws laid out by the legislature, and we similarly agree to accept the penalty if we do not follow those laws. To enforce the laws on some, but not others, is an injustice to the former. If Prejean was underage when she made the video (debatable, but we'll assume it's true), but does not get charged, that is an injustice to every other teenager in this country that has suffered prosecution for the same material act.

If Prejean does get charged, then her life might be "destroyed," but she was on notice that that was a possibility. That's not injustice, that's forcing her to play by the same rules as the 13-year-olds in Pennsylvania.

Posted by: Res ipsa | Nov 13, 2009 11:31:09 AM

Any investigation and prosecution can potentially ruin a life - innocent or guilty. I concur. And I also support reform from every angle.

I actually agree with some of her opinions, however, her presentation, arrogance, and attitude consistently dig her own grave, e.g. Larry King Live. She reminds me a lot of Coulter. Therefore, people who agree with her don't even want to be associated with her. Serious.

Posted by: bernie | Nov 13, 2009 11:35:04 AM

If Prejean was underage when she made the video (debatable, but we'll assume it's true), but does not get charged, that is an injustice to every other teenager in this country that has suffered prosecution for the same material act.

What you're basically saying is: “Since other lives have been ruined, let’s ruin hers too, so that we ensure equal ruin to all.” I say, let’s stop the madness. Every life destroyed is one too many.

If Prejean does get charged, then her life might be "destroyed," but she was on notice that that was a possibility.

Actually, in most such cases, the purported offender did not know that she was committing a federal crime. Most people would be surprised to find that out. If she was “on notice,” the notice wasn’t very good.

That's not injustice, that's forcing her to play by the same rules as the 13-year-olds in Pennsylvania.

Don’t you think there’s a rather significant difference between 13 and 17?

Posted by: Marc Shepherd | Nov 13, 2009 4:55:58 PM

I can see some potential benefits from prosecuting her.

First, while I doubt that a high profile "sexting" prosecution will have much effect on teenager behavior, maybe it will cause parents to take more responsibility over what their children are doing and pay more attention to the potential dangers of unsupervised access to technology to send videos and photos instaneously. I also think that perhaps some parents should be tried as assessories from providing the technology without supervision. Or at least tried for contributing to the delinquency of a minor.

Second, the "sexting" issue requires a legislative fix - because the existing child pron laws were never intented to deal with a case where the perp and teh victim are the same (and while some punishment may be justified, I would hope that everyone would agree that 5 years in prison and lifetime sex offender registration is too harsh of a penalty for teenaged irresponsibility) - a high profile case like this may be what it takes to convince legislatures to act.

But maybe I just want to see her prosecuted because I have the hope that sending her to prison for 5 years would mean I never ever have to hear anything from her or about her again.

Posted by: virginia | Nov 13, 2009 5:22:43 PM

I realize this is a broader question about sexting prosecutions generally, but what ever happened to the rule that criminal statutes are not read to create liability for members of the class for whose benefit the statute was enacted? A child who has sex with an adult, for example, can't be prosecuted for aiding and abetting a statutory rape. So why can a child be prosecuted for child pornography when _she_ is the "victim" of the crime? Am I misremembering the rule of construction? Or does it just not apply here?

Posted by: a litigator | Nov 13, 2009 10:57:17 PM

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