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August 11, 2008

Catching up with some notable headlines

I am a bit overwhelmed trying to catch up with various sentencing stories after being off-line most of the last two weeks.  For example, all these headlines from recent news stories caught my eye:

August 11, 2008 at 07:24 AM | Permalink


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“From the Salt Lake Tribune here, "Sentencing Commission seeks options for prosecuting teens who trade nude photos over cell phones"”

Some prosecutors have too much time on their hands, and inability to use their discretion.

It is headlines like that discredit any prosecutor who claims that they actually use their discretion.

Posted by: s.cute.us | Aug 11, 2008 10:19:19 AM

s.cute.us. The problem I have with what Utah is doing is that these "innocent photos" find their way into the hands, sooner or later, of adults. By electing to deal with this in the home parents will now be in possession of child porn, which is against not just state law but federal law. Given that most child porn is made by relatives of the victim, how is this new approach not a defense to just such crimes. It bewilders me how one adult can be guilty of trafficking and/or possessing child porn while another adult is simply managing their teen's behavior. Sorry, my response to that is: snort.

If these parents what to manage it in the home, the home management needs to come *before* the photos get taken. If a child is guilty of homicide, we don't deal with that in the home; we deal with that in court. Why should the making of child porn be any different?

Utah's approach makes a mockery of the whole notion that federal law is designed to prevent the expansion of the "market" for child porn. Child porn is child porn regardless of the whether the producer is a child or an adult. Have these people never heard of the concept of grooming?

You see this as a case of prosecutor's discretion. I see it as yet another example of how there is one set of rules for affluent white teens and another set of rules for everyone else.

Posted by: Daniel | Aug 11, 2008 1:01:44 PM

First problem: This is not child pr0n.

Daniel, At the moment, it isn’t clear whether what you describe would violate the federal law because it isn’t commerce and it isn’t interstate. The circuits seem split on this. Secondly, simple nude photos are not child pr0n under the federal statute, and probably not under the state statute. Third, the federal statute includes an exception for destroying the photos. So, if an parent were to get their hands on one of these cellphones and press “delete” there would be no crime.

Otherwise, I am with you: there are different sets of rules for different classes of people. Any prosecutor that has had oral sex in Virgina (where it is still a crime) knows this.

Posted by: s.cute.us | Aug 11, 2008 1:15:28 PM

(1) The article clearly states that there were photos of minors engaging in "sexual activities" (direct quote). Perhaps my imagination is just too vivid but I don't see how this could be anything other than child porn, under any federal or state statute.

(2) The exception for the deletion of child porn has not been subject to rigorous testing in the courts. This puts parents in the role of determining what is or is not child pornography, and makes them potentially criminally liable if they get the answer wrong. Many parents mistakenly believe that illegal activity is in fact legal, as witnessed by the number of referrals law enforcement agencies get every year from Wal-mart photo developing. Pressing the "delete" key seem like a simple enough act, but what if a harried parent forgets or misconstrues what is actually being shown on the little screen? Are parents (as a class) really in the best position to be making such judgments when the consequences are so huge.

What Utah is doing is one of those ideas that seems on the surface to be rational and reasonable but in fact reflects a complete misunderstanding of the culture of child abuse/child porn. I think it's impossible to stop teenagers from having sex, and I am not convinced there is a sound public policy argument to do so; nevertheless, once a person (of any age) distributes images of minors engaged in sexual activities the analysis changes. It no longer becomes an issue best dealt with in the home but, given the rampant proliferation of child porn, an issue of important public concern that needs to be addressed as a serious issue.

Posted by: Daniel | Aug 11, 2008 3:58:32 PM

I have been doing some research on the Utah proposal and it is clear to me that there is no clarity on what exactly they are suggesting. The agenda of the Utah Sentencing Commission labels the proposal "Cell Phone Pornography," with no mention of the age of the offenders. Regrettably, the actual minutes of the meeting are not on-line yet.

Various other news articles characterizes the proposal in different ways. One says the proposal will deal with "images of body parts". Another that it deals with " 'low level' pornography" (whatever the heck that is). The more I read up on this the more I am coming to question if these kids violated any law at all. It's not helpful when the subject is being described in vague and contradictory ways by the press.

Assuming that the conduct did involve child porn, I'll let my prior comments stand. But I no longer am convinced that this is actually the factual situation.

Posted by: Daniel | Aug 11, 2008 4:31:12 PM

Daniel, I think we are pretty much in agreement – and agreement over the uncertainty as well.

I also agree that the “deletion” portion of the statute hasn’t been tested. There are some strange permutations of it.

Whatever the case, if this wasn’t so tragic, I would be circulating parody informations in which a girl showed a guy her “epidermis.”

Posted by: s.cute.us | Aug 11, 2008 4:35:03 PM

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