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May 20, 2008

Some strange stuff in child porn prosecutions

This CNN report about today's events in the child porn trial of recording artist R. Kelly provides an amusing twist on a serious subject: before "the 25-minute sex tape at the heart of the R. Kelly child pornography case" was played in a "packed Chicago courtroom," the courtroom sketch artists "were warned that if they drew any depiction of the acts on the tape, they, too, could be charged with child pornography."  As strange as that may sound, a more bizarre federal child porn case was decided today by the First Circuit in a ruling that led a renown blogger at AL&P to exclaim "Sweet Jesus on a Popsicle Stick!".

The First Circuit case producing this reaction is US v. Ortiz-Graulau, No. 06-1768 (1st Cir. May 20, 2008) (available here).  In this remarkable case, the 38-year-old defendant "carried on a consensual sexual relationship with a fourteen-year-old female."  But that what got him in trouble: the "age of consent in Puerto Rico was fourteen at the time."  Rather, the defendant's mistake was to take a few dozen sexually explicit pictures with his (too) young girlfriend.  Though the defendant apparently never tried to sell or distribute these pictures — he was reported by the film developer at his local Walgreens drugstore — the First Circuit affirms his conviction (requiring 15 years in federal prison) because he technically took illegal pictures of his legal relationship.  Our federal tax dollars at work.

May 20, 2008 at 07:54 PM | Permalink


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That is strange, since I don't think the 1st or 6th amendment requires that the AUDIENCE be shown the pr0n. (In fact, having witnessed a similar trial, the judge simply pointed the TV at the jury.) The government also takes the position that the pr0n remains the property of the government.

Whatever the case, prosecuting someone for a "depiction of a depiction" seems a bit of a stretch. Moreover, any sketch artist would be able to make a very good 1st amendment argument if he was charged, as the public certainly DOES have an interest in knowing what this guy is going to jail for.

Posted by: S.cotus | May 20, 2008 10:17:28 PM

Weird interstate commerce issues. The 14 year-old can consent to sex with adults, but not to visual recording of it. The First Circuit has its own response, of course:

"Ortiz simply says that evidence of the relationship should have been allowed--
without explaining how it relates to any defensible reading of the
statute. As presented, the argument looks simply like an effort to
invite jury nullification."

Absurd. If the federal government wants to establish a national age of consent law, let them bring forward a defensible theory for it. One that does not involve the scare tactic of "child pornography." If "children" age 14 and up are treated as "adults" for purposes of consent to sexual acitivity, and the victimization argument assumes they are in fact not prepared for sexual activity with older men at that age, then present the arguments. Don't hide behind an absurd policy that would permit sexual exploitation of an adolescent as long as it didn't involve a video recording or movement across state lines.

It is one thing for states to develop this kind of policy. They could easily have rational reasons for treating minors differently for consent and recording. Far more difficult for the federal government to make the case, if in fact this is a government of limited power.

As far as instructions to courtroom sketch artists...isn't the argument that children are revictimized every time those images are displayed? I fail to see why that is any more true if there are sketches as opposed to making the images publicly available to any member of the public who wishes to attend the trial.

Posted by: Alec | May 21, 2008 12:54:49 AM

"isn't the argument that children are revictimized every time those images are displayed?"

Well, that is the argument. I don't really know how coherent it is. However, the "depiction of a depiction" issue is a bit more complicated... the analysis given in the court (like most "analysis" of pr0n issues) is worthless and unsatisfactory.

Posted by: S.cotus | May 21, 2008 7:36:56 AM

An example of good "judicial activism."

Posted by: George | May 21, 2008 11:15:54 AM

Reminds one of the classic Comstock prosecutions, where material that was considered evidence could not be seen by anyone because it was so "obscene." Nothing prejudicial going on there!

Also, there was the U.S. v. O'Brien oral argument scenario where lawyers were told not to say the F-word in the hallowed Supreme Court building. The Chief Justice tried to discourage it as well by saying, on the front end, something like "We are all familiar with the facts of the case, so let's move to the substantive arguments."

But O'Brien's lawyers felt that to not say the word was to elevate it to a level that it did not deserve and that worked against their case. So, they dropped the F-bomb over and over and over in their oral argument. The Chief Justice was said to be livid!

Posted by: P.S. Ruckman, Jr. | May 21, 2008 12:18:10 PM

I think the 1st is wrong regarding the evidence relating to the laws of consent in the local jurisdiction. It would seem that the Supreme Court precedent under the First Amendment would allow it (and perhaps require) such a defense that the relationship was legal and beyond that considering the existance of a legal relationship also seems necessary given the Court's commerce clause precedence. The argument actually seems to be directed at a specific element of the crime (specifically the commerce clause and that the photos were created for the purpose of exploitation). The 1st Circuit's construction of the statute seems to have serious problems under the interstate commerce clause.

Posted by: Zack | May 22, 2008 11:30:47 AM

Might seem odd, but the Federal Child Pornography law is very explicit as to what is covered, and part of that is that an image, no matter how created, that fits the definition qualifies.

A drawing, not based upon anything other than the artist's mind, still can be prosecuted.

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