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March 8, 2011

The new challenges of new "child porn" in a new media world

Regular readers know the many sentencing challenges posed by the proliferation of child porn resulting from the internet and related technologies.  And this New York Times article, headlined "Michigan Town Split on Child Pornography Charges," highlights some of the new challenges that new technology is posing for this area of law.  Here are excerpts:

People in this economically pressed town near Lake Michigan are divided into two camps: Those who think Evan Emory should pay hard for what he did, and those who think he should be let off easy.

Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.

Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. “It is a serious, a huge violation,” said Charles Willick, whose 6-year-old daughter was one of the students, all readily identifiable, in the video. “He crossed the line when he used children.”

Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.

Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression. “I think they’re making a very huge deal out of it ,and it’s really not that big of a deal,” said Holly Hawkins, 27, a waitress at the Holiday Inn downtown. “None of the kids were harmed in any way.”

Legal experts say the case — and the strong reactions it has drawn from places as far as Ireland and Australia— underscores the still evolving nature of the law when it comes to defining child pornography in the age of Facebook, YouTube and sexting. The Supreme Court has ruled that child pornography is not subject to the same First Amendment protections as adult pornography, since it is assumed that the child is being abused.

But with the rise of technology, said Carissa B. Hessick, an associate professor at the Sandra Day O’Connor College of Law at Arizona State and an expert on child pornography and criminal sentencing, “now we have situations where people are being arrested and charged” in connection with digitally altered images, where no child was abused. There remains much uncertainty about how the law should be applied in such cases, she said. But because most defendants take plea bargains instead of going to trial, the courts are often deprived of the opportunity to sort it out.

Mr. Tague argues that the state statute covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity. But Ms. Hessick questioned whether the Michigan law could be applied in Mr. Emory’s case or “whether they’ve overcharged him.”

Even the Muskegon County sheriff, Dean Roesler, whose deputies arrested Mr. Emory after parents complained about the video, acknowledged that the case represented uncharted territory. While he found the video alarming and offensive, Sheriff Roesler said, “I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.”

March 8, 2011 at 08:50 AM | Permalink

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Comments

Wait wait wait...he's being charged for a video where it looks like children are listening to him play a sexually explicit song? You mean, the video isn't even depicting the children engaging in sexual activity!?

This prosecutor deserves to be tarred and feathered in the town square.

I guess Daniel Tosh won't be visiting the clear waters of Pure Michigan anytime soon--some of the videos he's played are far worse.

Posted by: Res ipsa | Mar 8, 2011 10:48:25 AM

not surprised! It is a sad time when it seems prosecutors are running the show and far too many are showing to have no conscious! So many of the drug and cp charges seem to be for no other reason, but to further the career of the prosecutor and create more work for them...My husband sits in jail and all though we are in the middle of a big injustice, there are so many others with much greater injustices that he sees while in a federal prison.

Imagine a country where prosecutors actually had to put in work to make a real case against an individual, where they had to prove how locking them up would better our communities, or protected other individuals from harm. With probation officers and police officers focused on the individuals that "really" pose a threat or potential threat to our communities. We would have a country with less debt and more jobs created for professionals to work in rehabilitation facilities. Imagine individuals paying for there crimes, but learning how to be better individuals when they return to our streets. As opposed to angry, frustrated, hardened, and learning a few unwanted things from our federal prisons as the are today. Facilities that actually required a higher education and promote that in young people to work at them, instead of prisons today who hire people who seem to be borderline criminals themselves or at best not educated enough to properly handle individuals and situations that arise without doing more harm and making the facilities and inmates things to survive and not rehabilitate!

Our countries balance has shifted significantly to Injustice weighing in and weighing us down. Hopefully soon, we will make a new shift of balance back to Justice and a legal system our country believes and not just laughs at until they find themselves in it....

Posted by: Fixnrlaws | Mar 8, 2011 11:53:42 AM

Res ipsa: Seconded. I have no clue how or why they charged him under child pornography laws. It's a video done in poor taste, but it's not child pornography under any stretch of the imagination

Posted by: Guy | Mar 8, 2011 12:20:59 PM

The charge certainly seems like a heavy hammer, but my question is: What is this guy doing in a first grade classroom? Think maybe he's got some problems?

As we hear so often in the religion-in-school context, children are a captive audience, and the younger they are, the more captive they are. Here, this creep has a bunch of six year-olds singing along with him to perfectly innocent songs, and then, once he's out of their and their parents' sight, re-edits the show for his own amusesment (and profit?).

Did the kids give consent to be used in that way? Did their parents?

Posted by: Bill Otis | Mar 8, 2011 2:01:20 PM

Bill Otis,

What do those issues you raise have to do in charging him with child pornography? Those issues should be addressed without this prosecutorial grandstanding.

Posted by: Robert | Mar 8, 2011 2:41:17 PM

Probably the vast majority of all crimes could be better addressed in civil court.

Posted by: George | Mar 8, 2011 3:01:02 PM

Does MI have a grand jury right? If not, will this even get passed the preliminary hearing? How outrageous this **child pornogrpahy** prosecution is!

Posted by: anon | Mar 8, 2011 3:25:25 PM

This is where we insert the clip of Mandy Patinkin: "You keep using that word. I do not think it means what you think it means."

Posted by: Anonymous | Mar 8, 2011 3:56:37 PM

"The charge certainly seems like a heavy hammer, but my question is: What is this guy doing in a first grade classroom? Think maybe he's got some problems?"

@Bill: I assume that Evan Emory's behavior might be tortious, and I assume that he might legitimately be prosecuted for some offense, e.g., trespass on the theory that he obtained consent to enter and remain on school property on false pretenses.

Even if one were inclined to agree with you that he is in any event guilty of bad taste, do you think it is an appropriate exercise of prosecutorial discretion to prosecute him for manufacturing and distributing child pornography if, in fact, nothing in the tape even purports to show anyone engaging in sexual activity, as opposed to purporting to show schoolchildren listening and responding to raunchy song lyrics and accompanying gestures? Even if some of the parents are (justifiably) angry and believe that the defendant "crossed the line" because he "used children," do you think a responsible prosecutor ought to say, "I'm inclined to agree with you; I just can't agree that the line he crossed was child pornography"?

Does anyone have access to the text of the statute? I'd be curious to see how the conduct alleged here fits even the language of the statute.

Posted by: guest | Mar 8, 2011 4:01:02 PM

Robert --

It has become a standard practice to point to some very questionable, outlier prosecution and then go to town on the prosecutor. OK, I have no great problem with that tactic, one-sided though it be. What I do have a problem with is the notion, which you echo, that it's then verbotten to say a single word about the behavior of the guy who got prosecuted.

This is a specific instance of the more general phenomenon that the defense side will talk about everything in the world EXCEPT the defendant's conduct. That might be (indeed it often is) a smart tactic from an advocacy point of view, but I am not required to sign up with it, and I don't.

I will note that the shoe seems seldom to be on the other foot. Earlier this year, Doug posted about a decision of the Massachusetts Parole Board to release a life-long, violent criminal in the name of the defense bar's beloved "compassion." It didn't take the parolee all that long to murder a police officer in the course of a robbery.

When Doug put up a post about this (actually, and to his credit, several posts), there were three comments. Two were by SC, and the third by me. The entry is here: http://sentencing.typepad.com/sentencing_law_and_policy/2011/02/massachusetts-killing-shines-light-on-state-parole-boards.html.

Not a single defense type among those who regularly comment here had anything to say. They just walked right on by.

Hey, look, cop gets killed by a fellow out on "compassion"-driven parole? NO PROBLEM. Not worth a word.

At least, Robert, when there's a very dicey decision on the prosecution side -- as here -- I don't hide out.


Posted by: Bill Otis | Mar 8, 2011 7:05:06 PM

I've noticed, Bill, that you repeatedly try to draw some conclusion about a group (such as "the defense bar" or "liberals" or what have you) from this group's failure to post comments on a particular post.

I would suggest that it's a dicey proposition to infer some point of view based on what someone DIDN'T say.

Not everybody reads every post, and not everyone who reads a post is moved to comment on it. I'm sure, if someone were so motivated, he or she could go through the last few months of posts, find posts you didn't comment on, and then use that silence to draw some conclusion about your point of view. I would think that just as silly as I find your approach.

I find it much more productive to base my opinion of people on what they say, rather than what they don't say. But that's just me.

Posted by: SRS | Mar 8, 2011 7:58:51 PM

actually bill if you read the article...he had permission.

"Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response."

They just dont' like what he did with the material once he had it. According to this at NO time was anything even remotaly sexual done in the presence of ANYONE let alone children!

so again...the DA is a friggin retard.

Posted by: rodsmith | Mar 8, 2011 8:03:16 PM

SRS --

"I find it much more productive to base my opinion of people on what they say, rather than what they don't say. But that's just me."

Then -- depending, of course, on the context in which they keep silent -- you are missing out on a good deal of valuable information.

The great majority of commenters here are liberal and/or defense oriented, as you full well know. If I'm supposed to be blind to this fact, I decline.

And I see you STILL have no comment on the cop murdered by the fellow paroled in the name of compassion. Personally, I have a problem with that murder, and with that parole. But maybe -- indeed, apparently -- that's just me.

Posted by: Bill Otis | Mar 8, 2011 8:29:14 PM

The prosecutor has immunity from tort liability. However, he is subject to heavy sanctions by the trial judge of the case. He should be made to pay all costs from personal assets not those of the taxpayer funded office. The taxpayer has done nothing wrong and does not deserve any punishment in the form of raised costs. Then, a week in jail seems fitting for criminal contempt for wasting the time of the court. To deter.

Posted by: Supremacy Claus | Mar 8, 2011 8:58:50 PM

This is an utterly ridiculous prosecution.

Posted by: federalist | Mar 8, 2011 9:21:29 PM

Bill:

I take umbridge that most posters here are liberal. I am as conservative as they come. I created wealth for this country in the private sector and because I have a few more dollars than most I am villified. However, I see major problems with the "God Given" Sentencing Guidelines and the justice system that has recently tilted all in favor of the courts, prosecutors and law enforcement, aka, the leeches of government.

Yes, it was terrible that a PO was killed by a parolee in MA. I know of 5 cases in my local area where LE have shot innocent people and it is swept under the rug.

Where is the justice in that.

Posted by: albeed | Mar 8, 2011 10:02:14 PM

Bill-

You are hiding out by continuously avoiding to address the most glaring and germane issue: the prosecutor's clear disregard for the spirit of the law. CP laws are meant to protect children from sexual abuse not to prosecute people like Emory who made a questionable video without a single sexual image of a child. So the guy wrote an explicit song and then edited in some kids listening to it. It might be stupid and in poor taste but it shouldn't be illegal in a country that still reveres the First Amendment. And just because the prosecutor charges CP, doesn't mean that the case is beyond a First Amendment defense. Real CP might be but not a song without naked images. Ultimately, the defendant's conduct is worth very little comment compared to the prosecutor's misconduct in charging him with a felony that could carry 20 years in jail and registry as a sex offendor. There can be no doubt that the prosecutor is abusing his authority here. Eeven if the text of the statute would allow this prosecution, this cannot be the kind of case the legislature had in mind. Avoiding the most relevant issue might as well be silence.

- AFP

Posted by: AFP | Mar 8, 2011 10:19:04 PM

Bill:

I bow to AFP's post.

What kind of country do you want? The defendant's (poor taste), or the prosecutor's (totalitarian)? I know, totalitarian!

Seig Heil!

Posted by: albeed | Mar 8, 2011 11:06:00 PM

albeed --

I tell ya what, even though you keep calling me a fascist, I can't help but like you. You remind me of rodsmith. You don't go in for a lot of self-righteous mumbo-jumbo, you just lay it right out there.

To answer your question about what kind of country I want, I'd like a solvent one.

Thanks for asking.

Posted by: Bill Otis | Mar 9, 2011 4:19:23 AM

federalist --

I sure would not bring this case, not under the CP statute and perhaps not at all.

If it were possible to hold a serious discussion about this episode, I would start with a theme I have sounded occasionally on Crime and Consequences, to wit, that law is a blunt and inapt instrument. The problem here is principally cultural, which is why I asked (predictably to no avail) what a guy like this is doing in a first grade classroom.

The commenters here defending him (or pretending not to defend him) say it's about a prosecutorial misuse of the CP statute. These are the same people who, if a non-criminal sanction were to be attempted instead, would be yelping that the guy is just an avant garde type, and that anyone taking the side of the kids' parents is a Puritanical nag.

Posted by: Bill Otis | Mar 9, 2011 4:31:45 AM

AFP --

"You are hiding out by continuously avoiding to address the most glaring and germane issue: the prosecutor's clear disregard for the spirit of the law."

Nope. You and your allies are the ones hiding out, by pretending in thread after thread that the CP laws are used principally against teenage sexting, when you know perfectly well that is false.

Are you planning, for once, seriously to discuss eight year-old's being photographed while being raped by adult men?

Didn't think so.

"And just because the prosecutor charges CP, doesn't mean that the case is beyond a First Amendment defense."

I don't recall saying that the case is beyond a First Amendment defense. Where was that? For that matter, I don't recall saying that I would have brought the case at all. Where was THAT?

"Ultimately, the defendant's conduct is worth very little comment compared to the prosecutor's misconduct in charging him with a felony that could carry 20 years in jail and registry as a sex offendor."

It might be worth "very little comment," but that's not to say it's worth NO comment. It was a sure bet that our posters would lambaste the prosecutor. Is there some reason I am forbidden from noting the unsavory if not sick character of the DEFENDANT'S behavior? Or is it just that you big First Amendment fans want to limit comments to only one perspective?

My goodness.

If your side could come unstuck for just a minute from its yelling and unhinged self-righteousness, I might whisper something in your ear, that being that I largely agree with your assessment of the purposes of the CP statute and its probable inapplicability in this case.

Posted by: Bill Otis | Mar 9, 2011 4:56:54 AM

Here's the statute. Just read the definitions of Child Sexually Abusive Activity and Child Sexually Abusive Material, and you will find absolutely no basis for this prosecution.

http://www.legislature.mi.gov/(S(vgzzuh45xu4iny55uthurwnm))/mileg.aspx?page=GetObject&objectname=mcl-750-145c

Posted by: Res ipsa | Mar 9, 2011 10:30:19 AM

"While he found the video alarming and offensive, Sheriff Roesler said, 'I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.'"

How does the fact that this video was displayed on the Internet somehow make it a different type of issue than if the guy had gone in with a film camera and made a film reel? People act like any time the Internet rears is scary head, suddenly a crime is somehow more sinister or confusing. What this guy did was record a song that he sang with some children and then dubbed bad words into it. He could have done this on TV, he could have done it for a movie, he could have done it to show people in his own living room, and the issues would all be the same, wouldn't they?

Posted by: Anonymous | Mar 9, 2011 2:21:39 PM

Anonymous--

Nailed it. What exactly is there to keep up with here? I think it more likely that a sheriff is trying to publicly justify an arrest that he feels uncomfortable making.

And along those lines, why exactly is the NYT talking about this case as if it were a child pornography case? Emory may have been charged under that statute, but no sensible person could possibly call what happened here "child pornography." Frankly, it insults the actual victims of child pornography to lump them in the same category as digitally-inserted minor audience members to a sophomoric ballad.

As a forewarning to SLP readers: this video, despite being taken off YouTube, likely still exists in the public domain. Don't you dare watch it, lest you be charged with possessing child pornography. And if you find it, don't send it to anyone else, lest you be charged with trafficking in child pornography.

Posted by: Res ipsa | Mar 9, 2011 3:46:35 PM

hmm

"To answer your question about what kind of country I want, I'd like a solvent one.

Thanks for asking.

Posted by: Bill Otis | Mar 9, 2011 4:19:23 AM"

ME too bill. So lets do so numbers. You were a DA any guesstament about how many 1,00's or 10's of thousands of dollars this little waste of time prosecution will cost?

Now if Each DA in the US ONLY has one a year any guess on how many MILLIONS or HUNDREDS of millions we could save? Just on the actual prosecutions we won't even talk about the 25 to 50 THOUSAND dollars a year after that each one of those convicted during one of these waste of time prosectuions will cost!

hell of a way to get a solvent nation!

Posted by: rodsmith | Mar 9, 2011 4:33:02 PM

Sorry to say, I got nothing wrong with this unique entertainment. Mr. Emory just wanted to present something eloquently. We are looking for something else. Brian here.

Posted by: George Allen | Mar 10, 2011 8:59:15 AM

my first reaction to this story was that it was a really funny parody of the icky perv fear in america, but then i realized it was real. so i had to move on to my second reaction and that is that bill has this one right - maybe that means i am wrong :P

there is really not enough information here to make a determination whether the defendant here is an icky perv or a sophmoric prankster. it appears that everyone here is assuming he was just a sophmoric prankster, but that assumes facts not in evidence. bill's question is the right one - why did he want to make it appear he was singing the lyrics to children - what was the purpose? the purpose is likely going to be best determined by the lyrics to the song and the actual video - and none of us have seen it. i mean, what if the singer is an icky perv and the song lyrics either explicitly or when combined with the video to implicitly are about having sex with children? then, why would it be unreasonable to prosecute an icky perv who makes a video designed to appeal to other icky pervs using real children talking about having sex with children even if the children are not engaged in any actual sexual conduct? its good that everyone is giving this guy the presumption of innocence, but i'm not going to call this a completley unreasonable prosecution simply because my assumption is that the guy wanted to make a joke he thought was funny and because he said so. criminal defendants have after all been known to lie to their attorneys and the press ;)

ginny :)

Posted by: virginia | Mar 10, 2011 11:33:44 AM

Bill:

I do understand you:

"As we hear so often in the religion-in-school context, children are a captive audience, and the younger they are, the more captive they are. Here, this creep has a bunch of six year-olds singing along with him to perfectly innocent songs, and then, once he's out of their and their parents' sight, re-edits the show for his own amusesment (and profit?)."

Did the kids give consent to be used in that way? Did their parents?

The obvious civil answer is NO and NO. Let the Civil Courts handle it!

We made a mistake long ago when we failed to differentiate between religion in school with values in school. We have raised a Generation of Vipers (Philip Wylie).

I don't want to get into an argument of right and wrong, but how can I/we save my/our children and grandchildren from the parasites of current society (I will provide them if you want) and the unboundless debt and servitude that this proscribes?

Posted by: albeed | Mar 11, 2011 1:17:12 AM

"The commenters here defending him (or pretending not to defend him) say it's about a prosecutorial misuse of the CP statute."

Right - anyone in his right mind knows that you can't misuse the CP statute on a defendant who has such poor taste. If everyone would just accept that, then we could get back to discussing the real topic of this thread, which is the criminal defense bar, the murder of a police officer committed by a parolee, and the wanton silence of liberal commenters on these pages when obvious wrong has been done.

Posted by: Michael Drake | Mar 11, 2011 7:51:16 PM

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