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?
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