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November 10, 2009

Is Carrie Prejean technically subject to 5-year mandatory minimum federal sentence for distributing child porn?

As detailed in this AP story, which is headlined "Ex-Miss California admits to making sex tape," it appears that a high-profile public figure is now admitting that she has engaged in behavior that makes her technically guilty of a federal crime under 18 USC 2252(a)(2) (which is punished through a five-year mandatory minimum federal prison term).  Here are the basics:

Former Miss California USA Carrie Prejean calls a sex tape she made for an ex-boyfriend several years ago "the biggest mistake of my life."  Prejean told Fox News on Monday and NBC's "Today" show on Tuesday that she shot the X-rated video of herself alone when she was 17 and sent it to a boyfriend.

Because Prejean was 17 at the time of the making of this "sex tape," it technically involves was federal law calls "use of a minor engaging in sexually explicit conduct."  I am not sure if Prejean could technically be guilty under 18 USC 2251 for producing child porn and so be subject to a 15-year mandatory minimum, but I am confident that she could be technically subject to the five-year minimum under 18 USC 2252(a)(2) for distributing material involving the sexual exploitation of minors.

With this post I am not — repeat, I am not — urging that Carrie Prejean be subject to federal (or state) child porn prosecution or be facing any criminal charges at all.  Rather, I am just hoping to use this high-profile incident as a teaching moment to help make everyone aware of how broad federal child porn laws technically sweep.

Indeed, in addition to potentially making Carrie Prejean a criminal, broad federal child porn laws could arguably be applied to anyone who seeks to post or link to a video of the Prejean sex tape.  Though possibly a media organization could assert a First Amendment defense when reporting on this new news story, lower courts have generally been disdainful of constitutional defenses raised in federal child porn actions.

November 10, 2009 at 10:03 AM | Permalink

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Comments

Is one or more of the following illegal?

a) Miss California organization holding onto the tape
b) Miss California organization not reporting existance of the tape to police

Posted by: . | Nov 10, 2009 10:18:17 AM

Both.

And unlike you Doug she should be charged. Why should she get free, because she is pretty? It's really a sickening postion of your part. One law for the rich and beautiful another law for the poor and ugly.

I call for her arrest right now!

Posted by: Daniel | Nov 10, 2009 11:11:16 AM

Actually, Daniel, I do not believe Doug is arguing that she should go free because she is pretty. I believe he is pointing out the absurdity that anybody should face the threat of federal prosecution under these circumstances.

Of course, Doug knows (as we all do) that a prosecution is unlikely in this case. The next case could be different, at which point Doug will ask (as he should), “Why now, when Carrie Prejean got a free pass?”

Posted by: Marc Shepherd | Nov 10, 2009 11:23:01 AM

Exactly. And the answer at that future point in time will be.

Because she's pretty.

At which time it will be too late.

I could care less about hypocrisy in speech. I care deeply about hypocrisy in fact.

If you believe in equality before the law you must believe in it while it is the law. The correct answer is not let those future people off because Carrie got off. That's nullification. The right answer is to prosecute those people who are violating the law and then change the law if we don't like the results. There is no principled basis on which to argue that she should not be prosecuted while maintaining respect for the law itself.

Posted by: Daniel | Nov 10, 2009 11:58:26 AM

I'm wondering - is there any other crime where you can be both the perpetrator and the victim? Bizarre.

Posted by: full faith and credit | Nov 10, 2009 12:04:52 PM

No, the correct answer is to repeal absurd laws. There is no good reason to prosecute her first, and then change it. Another life ruined? No thanks.

Of course, there is also a good argument for wisely exercising the discretion not to prosecute. She shouldn’t get a free pass for being pretty. She shouldn’t be scapegoated for it either.

Posted by: Marc Shepherd | Nov 10, 2009 12:09:40 PM

Marc. I agree with you 100% the the right answer is to repeal stupid laws. But life belongs to the rich and beautiful and they have no incentive to repeal stupid laws when they can wiggle their way out of them with "prosecutorial discretion". I'm perfectly willing to ruin her life if it keeps the pressure up to get these stupid laws repealed. Many years in politics have taught me that stupid laws don't get changed unless the bite of them is felt by people with the power to change them.

The fundamental the truth is that people don't look at their neighbor and say that could happen to me. They look at the celebrity and say if it can happen to her it can happen to anyone. The medium is the message and the only way to win is to make it cut both ways.

Posted by: Daniel | Nov 10, 2009 12:38:21 PM

what's the statute of limitations?

Posted by: Talitha | Nov 10, 2009 1:05:36 PM

Honestly, I don't think that even the prosecution of Carrie Prejean, a long mandatory minimum, and lifetime registration as a sex offender, would lead to the repeal of these laws. It would just ruin another life. Every life ruined is one too many.

Posted by: Marc Shepherd | Nov 10, 2009 1:07:05 PM

Seems unlikely. See United States v. Clara Holte, 236 US 140. This seems exactly like the sort of crime that would not allow the victim to be punished as the perpetrator.

Posted by: Iain | Nov 10, 2009 1:28:39 PM

How many thousands (millions?) of people are searching for and viewing this (video?) Related articles: "Carrie Prejean sextape, Carrie Prejean nipple and video are top Google searches."

Child porn is the perfect crime for the government because all the focus on it, far more so than drug use, actually entices curiosity.

This is the first time I've been tempted to view child porn. If not a frequent reader of this blog, I may have tried, and without knowing until now that she was a minor at the time. Still guilty.

Posted by: George | Nov 10, 2009 1:44:46 PM

This is the first time I've been tempted to view child porn.

I don’t consider this to be child porn, in the normal sense of that term — i.e., notwithstanding the legal definition. If she can legally have sex (and at 17, obviously she could), then it’s not child porn; it’s just porn.

Posted by: Marc Shepherd | Nov 10, 2009 1:57:58 PM

Marc, it depends on the state. Isn't she from California? Then she must be 18. The government probably won't round up these thousands or millions of searchers, but maybe it could be probable cause for an investigation already in progress for a variety of crimes where probable cause was lacking.

The government loves these Internet sex crimes because the cost/benefit is so favorable. They are relatively cheap to investigate and prove and they score big bonus PR points. And with all the free advertising, it will never run out of customers to serve search warrants.

Posted by: George | Nov 10, 2009 2:25:38 PM

Daniel: Take it easy. You got pretty emotional there. Perhaps, you just want to see Carrie paraded cuffed behind her back. A lawyer could then rescue her. No feminist outcry about her unfair treatment. It shows, feminists are not really advocates for females. They are really advocates for the left only, posing as advocates for females.

Nature and 100,000 years of human history had adulthood at 14. The age of 18 was to keep people out of the labor market on behalf of Commie unions. It is pretextual. It is a nonsensical age, without biological landmark. And maturity comes from experience not the passage of time. And 40 year olds are more mature than 20 year olds, and 60 year olds are more mature than 40 year olds.

If a law is a hoax, a pretext, a false law, not only should it be disobeyed, the state should be sanctioned under Section 1983, with state officials being made to pay from personal assets. To deter. This is a form of legal hoaxing for the sake of lawyer rent seeking, and to further the hunt for the productive male by vile feminist lawyers and their male running dogs. There is an affirmative duty for a government to not hoax the public with a law.

There is an affirmative duty of the innocent defendant to counter-attack the federal thug. Do total e-discovery on all their work and personal computers. The federal government is likely the biggest subscriber and downloader of child porn. Then report the federal attorney for possession of child porn to the FBI. When the FBI shows up, do e-discovery on them. Do it on the judge. That has never been done before. No innocent defendant should remain alone in legal uncertainty. If the defense attorney refuses, do not fire, enjoin him to do his job.

Posted by: Supremacy Claus | Nov 10, 2009 6:24:47 PM

Hundreds of secret sex-for-thrills videos are probably made and distributed BY and AMONG underaged youth via their cell phones every year (e.g. sexting). A lot of them are no doubt poorer and uglier than Carrie. Have any underaged youth been prosecuted for making and distributing child porn this way? If not, how then could a "rich-n-pretty" Carrie be getting a "pass" on a crime that no "poor-n-ugly" youth has even been prosecuted for?

Posted by: Yu | Nov 11, 2009 2:11:57 PM

Student: She or anyone else who breaks an existing law should have their day in court. If she wants to claim civil disobedience as one of you have suggested, she would be laughed at all the way to her jail cell. Personally I believe that the age of consent should be consistent across the 50 states and if you can consent to have sex you can consent to being taped while doing it. Do I think she should go to prison; no. But that should be left for a jury to decide. If you started prosecuting these idiot youngsters who apparently have parents who have the 'not my child' mentality, then maybe...just maybe, they would knock it off. Situations like this prove that sheltering your children for reality does absolutely nothing to help prepare them for it.

Posted by: Jaden | Nov 11, 2009 7:15:00 PM

OBSERVATION FROM A LEGAL SECRETARY: As to Prejean making the tape at age 17, we only have her word to go on. Keep in mind that when the first nude pics of her emerged, Prejean claimed to have been similarly underage when they were shot...though Victoria's Secret, who manufactured the distinctive pink panties worn in the picture, later stepped forward to point out they did not even SELL that line of lingerie untill Prejean was OLDER. So, I don't believe it's actually been established with any real certainty that this video is indeed of a minor.

Posted by: Cookie | Nov 11, 2009 8:02:16 PM

QUOTE:

Have any underaged youth been prosecuted for making and distributing child porn this way? If not, how then could a "rich-n-pretty" Carrie be getting a "pass" on a crime that no "poor-n-ugly" youth has even been prosecuted for?

--------------------------------------------

Yes, underage females have been prosecuted for distributing nude photos of themselves:

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

In an unusual legal case arising from the increasingly popular practice known as “sexting,” six Pennsylvania high school students are facing child pornography charges after three teenage girls allegedly took nude or semi-nude photos of themselves and shared them with male classmates via their cell phones.

The female students at Greensburg Salem High School in Greensburg, Pa., all 14- or 15-years-old, face charges of manufacturing, disseminating or possessing child pornography while the boys, who are 16 and 17, face charges of possession, according to WPXI-TV in Pittsburgh, which published the story on its Web site on Tuesday.

Posted by: Bob Smith | Nov 12, 2009 11:07:46 AM

QUOTE:

Have any underaged youth been prosecuted for making and distributing child porn this way? If not, how then could a "rich-n-pretty" Carrie be getting a "pass" on a crime that no "poor-n-ugly" youth has even been prosecuted for?

--------------------------------------------

Yes, there have been underage females who have been prosecuted for distributing nude photos of themselves:

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

In an unusual legal case arising from the increasingly popular practice known as “sexting,” six Pennsylvania high school students are facing child pornography charges after three teenage girls allegedly took nude or semi-nude photos of themselves and shared them with male classmates via their cell phones.

The female students at Greensburg Salem High School in Greensburg, Pa., all 14- or 15-years-old, face charges of manufacturing, disseminating or possessing child pornography while the boys, who are 16 and 17, face charges of possession, according to WPXI-TV in Pittsburgh, which published the story on its Web site on Tuesday.

Posted by: Bob Smith | Nov 12, 2009 11:09:20 AM

My opinion on this is that the establishment needs to be 'recalled' and as soon as possible. Bad laws and bad legal judgements are in fact a form of TREASON! Yes, so everyone better start minding their business! It's just our tough luck to get stuck with wimps and pimps for leaders! These male losers are all either purile or senile! And not less than half are gay!

Posted by: Elsa Primo | Nov 12, 2009 6:16:09 PM

Interesting discussion but irrelevant to Prejean...
The recipient of the video in question has come forward to say he first met her in Feb of 2007 when she was 19 and received a series of videos from her for many months after that. He estimates the one Pageant Officials showed to settle the lawsuit was made after her 20th birthday.

Posted by: M.R. in L.A. | Nov 12, 2009 8:27:18 PM

OMG she's hot she gets a total pass. Ugly (and old) people just need to give it a rest - yes Larry that means you.

Posted by: Dude | Nov 12, 2009 9:58:31 PM

Thats a lie, because its of herself, she didnt distribute somebody else underage, that would be illegal< NOT OF YOURSELF< people mess around all the time,

Posted by: bobby | Nov 13, 2009 8:08:41 PM

If Ms. Prejean distributed kiddie porn (herself) as a minor, would she, as a minor be legally unable to give consent for the act? However, this would not be true of others in the chain of custody between Ms. Prejean and TMZ. In fact, isn't EVERYONE currently in possession of these tapes in jeopardy of prosecution for possession of kiddie porn? If so, wouldn't the lawyers who showed the videos to Ms. Prejean and her mother guilty of extortion to coerce a settlement?

ERGO, the age of Ms. Prejean when she made and distributed these tapes is a critical point of law. Perhaps more interesting than her onanistic exertions.

Posted by: Steve Poling | Nov 13, 2009 11:17:20 PM

Moreover, the fellow who received and redistributed these videos (as well as everyone in the chain of custody) is highly motivated to claim Ms. Prejean was not a minor in the video, due to the legal consequences if she were.

Posted by: Steve Poling | Nov 13, 2009 11:23:52 PM

i would like your readers to have a chance to read in full an open letter that the attorney gloria allred worte to miss carie prejean before the letter the answer to you question is am a private citizen

now the entire letter


Open Letter to Carrie Prejean
Yesterday, I heard you admit on the Today Show that when you were a teenager you engaged in “sexting” to your boyfriend. While you did not discuss the specifics of what you sent, I think it is fair to assume that you know that “sexting” refers to sending sexually explicit photos via cell phone..
Carrie, when you admitted that, did you realize that those who engage in sexting are at serious risk of severe legal consequences that include the possibility of being prosecuted for transmitting child pornography?
Do you think that you should be prosecuted or that others should be prosecuted for distributing an inappropriate sexual image of a minor or should there be a “Carrie Prejean” exception to the law? Carrie, as you read this letter young people throughout this country are being prosecuted and have been prosecuted for “sexting” to their boyfriends (as you said you did) or to their girlfriends. Some may also argue that the photos of themselves that they sent were for private use (as you said your photo was).
Carrie, it doesn’t matter. Please understand this, getting breast implants is not a crime, Sexting is!
Upon conviction, some of those convicted of sexting have been sentenced to prison and were required to register as a sex offender.
If you were prosecuted and convicted, do you think you should have to register as a sex offender and have that follow you the rest of your life on public records?
November 11, 2009 Page 2
How would you feel if your resume read: “Former Miss California, opponent of marriage equality and registered sex offender”? What kind of an example is that for young girls?
Carrie, you said that conservative women are being attacked for their beliefs. Carrie, to be clear, I am not attacking you for your beliefs, but I am criticizing you for your behavior.
I know you are out there trying to market yourself and your book and in many ways trying to profit from positioning yourself as a victim, but please think about what I have said.
Those who are being prosecuted for crimes are being called “defendants” not “victims”, and when convicted “sex offenders” - not “conservatives” or “liberals”.
It is time for you to take full responsibility for what you have done. Are you ready to strip away the excuses and do a “perp” walk instead of a walk on the runway in a bathing suit or are you hoping that the statute of limitations and your conservative buddies will be your “trump card” and prevent any prosecution of you?
I look forward to your response.
Sincerely,
GLORIA ALLRED

Posted by: BART KEARNS | Nov 14, 2009 5:01:38 AM

The Miss California organization probably didn't know how old Carrie was in the video, so there was no need to inform the police.

The Age of Consent laws in the United States are absurd in their current form. They are supposed to protect the young - not prosecute them. Prejean should only go to jail if hypocrisy is illegal

Posted by: Jesse | Nov 14, 2009 3:02:37 PM

According to developing reports, Carrie Prejean was 20 when she sexted her masturbatory video to her boyfriend. Apparently, she and her people wanted her boyfriend to lie and say that she was 17 at the time of making/transmittal. Obviously, Miss Prejean, attempting to pull yet another Prejeanism (lying/deceitful/fraudulent antic), did not realize that by claiming to be 17 (probably thinking that it would distance her - from what she says was the single biggest mistake of her life - from the immature actions of a teenager), she would in fact be incriminating herself. Annnyway, she signed the pageant contract fraudulently by not disclosing, per pageant rules and regulations, the fact that the videos/photos existed (8 videos, 30+photos known of as of 11/15/09). America was subjected to the ensuing train wreck of drama needlessly; Carrie Christian Prejean was ineligible - justifiably and legally - to compete in the pageant from day one.

Posted by: Guytano Parks | Nov 15, 2009 12:43:41 PM

Forgot to include this: I am just a person who happened upon this site by doing a basic Google search due to interest in the discussions about the developments - bashing/praising, etc. - in the Carrie Prejean debacle. OH, and by the way, EXCELLENT LETTER, GLORIA ALLRED!

Posted by: Guytano Parks | Nov 15, 2009 1:00:05 PM

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