Kids Producing and Distributing their own Child Porn

Children producing and distributing their own child pornography has long been a dream of child porn devotees and a nightmare for parents and law enforcement. Not surprisingly, digital technology combined with ease of distribution through social networks and e-mail has made this theoretical threat to children a sad reality.


This disturbing trend, most recently profiled at Wired, raises some thorny legal issues. As anyone who has followed this blog knows, I am no fan of child pornography or child exploitation, even calling for the execution of those found guilty of child rape.


Homemade child porn which is directed, created, and distributed by the usually willing teenage participants (who may be engaging in sexual activity which is completely legal in their state depending on the age of consent) puts us in new and largely uncharted legal territory. . . .

The fundamental underpinning of state and federal child pornography law is to deter, prevent and punish the production, distribution and possession of what are essentially child rape scenes depicting the adult abuse and exploitation of largely pre-pubescent children. The public policy goal is to stop the abuse by stopping the seemingly unlimited demand for such images and movies. This is why child pornography is completely removed from the Constitutional milieu in terms of the First Amendment and obscenity. Simply put, child pornography is "outside" the traditional Constitutional framework and is per se illegal.


This is also why the Supreme Court struck down the ban on virtual child pornography, basically finding that virtual child porn continues to enjoy First Amendment protection since no "real" children were harmed. Virtual child porn can still be banned if it is obscene, but it can not be banned as "child pornography."


What then to make of pornography involving real teenaged children who are consenting to and perhaps even reveling in sexual activity with their similarly situated peers? Should the federal child pornography law track state age of consent laws which still vary widely (from 14 in Hawaii, to 15 in South Carolina, and 16, 17 and 18 everywhere else)? Should there be separate child pornography penalties for juvenile offenders? What about an affirmative defense for such consensual but under-aged conduct?


When child pornography was first banned in the late 1970s, it included children under the age of 16. Congress raised the ban to 18 some years later. Should we return to age 16? or 15? And should commercial sexploitation continue to prohibit actors under age 18 even if homemade teenage movies are exempt?


In U.S. v. Ortiz-Graulau, the First Circuit Court of Appeals was recently confronted with this issue. The case involved a 38 year old man who carried on a consensual sexual relationship with a fourteen year-old girl which was completely legal under Puerto Rican law. The defendant, Ortiz, was convicted under the federal child pornography law for taking pictures of sexual acts between him and the girl. When arrested, Ortiz admitted that he had a sexual relationship with the girl and that he took the explicit photographs with the knowledge that she was fourteen at the time. But Ortiz insisted that the photographs were not properly considered child pornography because he and the girl were living together legally in a "marital-like" relationship.


The Court made several interesting observations:

Ortiz's first point implies that the conduct was occurring anyway and just happened to be photographed. But the number of photographs, many of sexually explicit poses, permits a strong inference that some of the conduct occurred in order to make the photographs.


As for Ortiz' intended use of the photographs, the statute's language requires only that a visual depiction be made. Perhaps Congress mainly sought to suppress trafficking in child pornography; but a pecuniary purpose requirement was earlier deleted
from the statute and preventing exploitation of children could be aided by the statute's broad ban on taking such photographs even for private use.


Ortiz probably did not understand that his conduct was criminal: the government points to no proof that Ortiz knew the law, and his lack of concealment and the then-applicable age of consent in Puerto Rico support his factual claim. But neither the statute nor precedent suggests that this is a rare instance in which ignorance of the law is a defense, although this might well be relevant in sentencing.

Ultimately the Court addressed the real difficult issue in this case:

Despite the language of the statute, Congress may well not have intended to make it criminal for a husband and wife to take intimate photographs of each other for their private use; this is so even if the instigator were twenty-one and the other spouse
seventeen, thus falling within the plain terms of the statute's prohibition. If the government brought such a case, judges might seek to devise limits even on "plain" language; indeed, some judges have even suggested constitutional objections based on
marital or consenting-adult privacy rights. But Ortiz and SMN were not married . . . [and neither was she or most teenagers a so-called legally consenting adult]

The Court concludes with this warning:

With the requirement of a pecuniary purpose deleted, [the federal child pornography statute] has a potential for producing some outcomes-especially sentences-that are disquieting. This may or may not be true in the present case: the photographs, as SMN's mother made clear, are not a full measure of the harm done to
SMN's life by Ortiz' drawing her into the relationship. But it is quite a different question whether this statute is the proper way to deal with family-related delinquencies ordinarily governed by local law.

Regardless of what you think about Ortiz and his conduct, the fact remains that more and more teenagers are violating laws designed to protect them. Ortiz wasn't even distributing the photographs which is how many teens get caught. Production alone carries a mandatory minimum of 15 years. Distribution and possession both have a 5 year mandatory minimum. Add to that lifetime registration as a sex offender and kids are facing serious consequences.


How should the law, and society, respond?

Child Rape Death Penalty Case Dies

I know that I am once again courting controversy on this topic, but here it goes anyway.


Last week the Supreme Court declined to reconsider its controversial June ruling in Kennedy v. Louisiana which sounded the death knell for the death penalty for child rape.

As you might recall, the Court based much of its reasoning on the emerging "national consensus" that the death penalty for rape is wrong. What no one seemed to realize at the time, however, was that Congress passed a law in 2006 specifically allowing the death penalty for child rapists under military law. Once Louisiana discovered this oversight they petitioned the Court for a rare re-hearing.


Last week the court denied that request by a 7-2 vote with Justices Thomas and Alito dissenting. Justice Scalia, joined by Chief Justice Roberts, issued a searing statement and joined the majority only because, as Scalia put it, "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's opinion in the case."


Scalia rightfully notes that the relatively recent Congressional law completely undermines the Court's June decision.


In an act of judicial self-justification, Justice Kennedy wrote that the military death penalty for rape was the rule for more than a century and when the Supreme Court declared in 1977 that the death penalty was unconstitutional for the crime of adult rape, military law was not considered. He also reasoned that military criminal law should not necessarily color the constitutional analysis of a related law in the civilian context.


During the summer, both presidential candidates weighed in on the Court's decision. Obama stated that the rape of a child "is a heinous crime" for which "the death penalty should be applied, in very narrow circumstances, for [this] most egregious of crimes." McCain called the ruling an "assault" on the legal system.


Whether you are pro or con, you should be painfully clear about the crime under consideration. Perhaps no case better illustrates the justness of the death penalty for child rape then the recently concluded trial of John Worman, who jury members declared "was like looking at Satan sitting at the table."



During the trial, the jurors had the painful task of viewing unspeakable images of children as young as 3 months old being held down and raped by Worman. In this case authorities had to sift through more than a million horrific images of children being victimized - many snapped by Worman while he committed anal, oral and vaginal sex on the youngsters ranging from infants to 15 years old during a nine-year period.


Worman's girlfriend, who ran a daycare which supplied many of the victims, was convicted of 15 counts of producing and possessing pornography. Videos and still photos showed her undressing and then posing naked youngsters on a chair in front of the camera to feed Worman's predatory appetite.


In one of the videos that included sound, Worman's girlfriend could be heard ordering a victim to "spread her legs." A small voice asks "why" as she continues demanding the child do as she is told.


In another video, a childish voice could be heard screaming, "It hurts ... it hurts." And a voice identified as Worman replies: "Almost done. It'll only take a minute." At the end of the tape, the child is heard crying.  There was also a video that shows children innocently doing homework when Worman comes up demanding sex.


Sadly folks, this case is not an anomaly. People need to wake up. No amount of social work or strengths based philosophy can save Woman and his ilk or the innumerable victims of his savage crimes. Since these evil bastards are now photographing and video taping their heinous deeds, perhaps the Supreme Court should be treated to a screening. This is the same court, after all, which declared obscenity hard to define, but "I know it when I see it."


Perhaps once they see live action videos of child rape they'll figure out what to do about it.


In fact, perhaps the Worman tapes should be shown to everyone, then, I assure you and the Court, a national consensus will quickly and surely emerge leaving but one remaining issue: should we hang 'em or use a firing squad?