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March 1, 2011

"You Can Have Sex With Them; Just Don't Photograph Them"

The title of this post is the headline of this notable commentary by Radley Balko at Reason, which carried the sub-heading "A former cop's 15-year prison sentence illustrates the absurdity of federal child porn laws." Here is how it gets started:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17.  One of the women had contacted Rinehart through his MySpace page.  He had known the other one, the daughter of a man who was involved in training police officers, for most of her life.  Rinehart was going through a divorce at the time.  The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.

Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal.  The age of consent in Indiana is 16.  That is also the age of consent in federal territories.  Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart.  Rinehart lent her his camera, which she returned with the promised photos.  Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.

In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison.  Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied.  There is no parole in the federal prison system.  So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years.

Hamilton was not permitted to consider any mitigating factors in sentencing Rinehart.  It did not matter that Rinehart's sexual relationships with the two girls were legal.  Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer.  There was also no evidence that he abused his position as a police officer to lure the two women into sex.  His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)

"You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate," says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums.  "But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn't fit the culpability."

March 1, 2011 at 08:22 AM | Permalink


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This is a case which validates mandatory minimum sentences. Recall we have them because 20 yrs ago a judge in CA would sentence this guy to probation while a Judge in GA would sentence him to 15 years. It doesnt help when so called advocates like "Families Against Mandatory Minimums" downgrade the seriousness of child porn. Just beacuse the relationship may be of legal age in one state, doesnt allow him to produce child porn with impunity. One may argue the sentence is harsh, but where do you draw the line - mandatory 2 years? 5 years? 10 years? 15 years? You may not like where the line is drawn, but it was. For every case like this there are 5 others with horrific stories of brutal rape, bondage...manufacturing and distributing child porn is the worst of the worst.

Posted by: DeanO | Mar 1, 2011 8:56:54 AM

As much as people may not like it, I think mitigating factors should have been considered here.

I will always admit I am no legal scholar, but an example that comes to mind is the following:

Let's say a couple gets married. Both are under 18, but both are the age of consent. Let's also say that this couple has a wild streak and wants to video tape their wedding night for their own private enjoyment later on in life.

Again, I could be mistaken here, but under the federal law as it is described here, both could be charged for producing child pornography.

DeanO's argument that there are plenty of similar cases where there have been some horrific outcomes is certainly noted. But in my example, and in the particular case this story mentions, I think things were done responsibly with mutual affection and that all parties fully knew what was going on.

Posted by: Questions_Authority | Mar 1, 2011 11:08:05 AM

"touch , but don't look"

Posted by: . | Mar 1, 2011 1:01:26 PM

The previous comment made me remember a line from one of my favorite movies The Devil's Advocate.

Look, but don't touch.
Touch, but don't taste.
Taste...but don't swallow.

Kind of off topic I know, but thought I would share.

Posted by: Questions_Authority | Mar 1, 2011 1:11:08 PM

You may not like where the line is drawn, but it was.

Why is this different than any other government policy with which we may disagree? Plenty of things are now criminal that didn’t used to be; and some are now legal that were once criminal. Laws change. We all understand that the court had to follow the rule as written. We can still have a rational discussion of whether the rule is, in fact, the right one.

For instance, the rule could state that if you legally had sex with someone, then you can legally photograph them too, if the photos are for your own use. It doesn’t take a genius to see that if the sex is legal, the photo shouldn’t put you in the slammer for 15 years.

Given that prosecution, and particularly federal prosecution, is discretionary, one would love to know how the prosecutors in this case concluded that this was a worthy expenditure of federal resources.

Posted by: Marc Shepherd | Mar 1, 2011 5:13:28 PM

who knows....maybe this guy will be the one to blow this apart and use his police training to remove himself from the illegal imprisonment he's in now..doing whatever he needs to even killing to escape it.

Posted by: rodsmith | Mar 1, 2011 6:11:19 PM

This case is a variation of sexting. Those girls will never look as good again, not even at 19, when they will have started to get fat. The documentation of their peak beauty is a benefit. Evidence for the benefit is that one of the girls proposed the pics be taken.

This crime appears to carry strict liability. Consent of the victim is a defense to most other crimes, but does not apply here.

Furthermore if the aim is to deter child abuse, child porn is shown to reduce child sex abuse of real children. As this law gets more enforced, child sexual abuse has progressively increased. The law appears to be causing more child sexual abuse. I would like to see child abuse victims sue prosecutors and states with Section 1983 claims. At the very least, prohibition keeps the price high and production profitable for large criminal syndicates. Some may be funding terrorist organizations.

The girl who first proposed the pics, shouldn't she have faced prosecution, at least on conspiracy and solicitation?

Posted by: Supremacy Claus | Mar 2, 2011 4:44:12 AM

I urge the police friends of the defendant to ticket Judge Hamilton and the prosecutor every time they exceed the speed limit by even 1 mph. While writing the tickets, the officer should say, he is sorry, but due to mandatory traffic laws, his hands are tied.

Posted by: Supremacy Claus | Mar 2, 2011 5:57:25 AM

oooh good one SC! i can see it now. have a line of police cars just waiting as soon as one finishes a ticket and they move 100ft....ANOTHER stop for the same ticket!

Posted by: rodsmith | Mar 2, 2011 3:54:52 PM

and let's not forget if they even twitch wrong...you now have contempt of cop and they can beat them to death! and it's all LEGAL! since the courts have been bending over and kissing the cops's asses in those types of cases for decades!

Posted by: rodsmith | Mar 2, 2011 3:56:00 PM

"For every case like this there are 5 others with horrific stories of brutal rape, bondage...manufacturing and distributing child porn is the worst of the worst."

Which is why MMs and harsh pushy guidelines frequently are cruel and nonsensical. Let judges be judges.

The only hope for a justice system worthy of the name is to adopt saner ways to pick judges. Missouri's model for selecting appellate judges has much to recommend it...which probably explains why nut-job right-wingers in that state are working tirelessly to scuttle it.

Posted by: John K | Mar 2, 2011 9:16:31 PM

It has always been idiotic to create all these consensual "crimes" that only serve to destroy Liberty.

It's also horrendously expensive, both in terms of costs to the public treasury as well as ruined lives.

Too many modern "crimes" lack the traditional criminal elements of damage to non-consensual persons and/or property.

If there is a positive aspect to the current sorry economic conditions, it may be that government might begin to apply some common sense to a revision of criminal statutes.

Prisons are bursting at the seams, while causing greatly increased public expense. Prisons and jails contain far too many people who pose no serious threat to society.

Too many laws have led to vastly increased court dockets which in turn have led to a general corruption of the criminal judicial system.

Though the right to a trial by jury is protected in the Bill of Rights, some 90% or more of criminal cases are resolved through plea bargains (pleading guilty). A dirty little secret is that many defendants plead guilty because of prosecutorial coercive techniques that fly in the face of due process. Prosecutors are known to stack bogus charges, indict, or threaten to indict defendants' loved ones, both to intimidate defendants to plead guilty as well as to have something to offer in exchange for a plea of guilty.

Any defendant who chooses to exercise the right to a jury trial over a guilty plea and is convicted can expect a significantly harsher sentence than if he or she had pled guilty. This “trial penalty” is stunningly high. In serious felony cases, a sentence imposed after trial, controlling for offense type, prior record, and other legal and extra-legal factors, will often be over 5 times more severe than the expected sentence for the same offense after a guilty plea. Such a scenario leads many truly innocent defendants to "cut their losses" and plead guilty.

Most judges willingly go along with the program, disregarding prosecutorial misconduct, in order to clear heavy court workloads.

The result is a criminal justice system where true justice has become a rarity rather than the norm.

All this is accepted by a public that quivers in fear of crime due to media over-amplification of crime reporting.

Posted by: smitty | Mar 3, 2011 10:39:06 AM


You have hit the nail on the head. It is not black and white as many on here posit. The law (harumpf from that man over there), is not like the Paper Chase.

It Is Corrupt, to the soul.

I pray we can change, but an uneducated electorate will not allow Real Leaders to do it. Look at the mainstream media.

First, I would eliminate the Adam Walsh Act, second, I would defund the NCMEC, who are only heroes in their own mind. (Their lies are super-abundant and they have not done one bit of good). We should be able to protect ourselves and our own through the real 2nd Amendment, not as corrupted by Congress and the Courts.

Maybe a real depression, with 75-95% of all colleges closed, will help. There is no ROI today for a college degree for the majority of students.

This will be the next bubble.

Posted by: albeed | Mar 3, 2011 10:23:57 PM

There is good moral, intellectual and policy justification for male direct action groups to take the fight to the vile feminist lawyer and its male running dogs. The war is quite physical when the vile feminist comes after the productive male. Mutuality of remedy is overdue. This will likely have to be achieved by recent immigrants. The American male has been made too feminized, too fat, and too addicted to video to even get out of the house to meet with anyone, let alone act on anyone.

Posted by: Supremacy Claus | Mar 3, 2011 11:24:05 PM

It has for 10,000 years of human history, as well. At age 18, nothing happens that doesn't happen at age 17 or 19. This case is an example of the hunt of the productive male by the vile feminist lawyer.

Posted by: replica cartier | Mar 28, 2011 12:28:49 AM

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