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When you can legally have sex with a 17-year-old, can you be prosecuted for possessing lewd nude photos of her?

From Commonwealth v. Kushmanick, which was decided last year by a Pennsylvania appellate court, but which I just came across last week (all quotes are from the opinion):

1. The facts: Kushmanick started dating S.C. when he was 18 or 19, and she was 16 (according to defendant, just a week shy of her 17th birthday). The age of consent for sexual activity generally in Pennsylvania is 16. (There is the possibility that someone may be prosecuted for “corrupting the morals of a minor” when the minor is 16 or 17, but this was not an issue raised in this case.)

As part of their relationship — according to Kushmanick, after S.C. turned 17 — he would photograph S.C. naked. “The photographs depicted S.C. naked in a blatantly sexual way. However, the photographs also graphically establish that S.C. was a willing and voluntary model.” Her face was apparently not visible on the photographs, but she recognized them at trial because of various items of clothing and linens they depicted. Full Article

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  1. Chris F

    Very well written article, showing both sides.

    Strangely enough, I partially disagree and partially agree with the outcome.

    There should be laws that can kick in at different ages over related subjects. Sure, teens should be able to have sex before 18. That doesn’t mean they should be able to consent to being photographed having sex before 18, which is what the judges said they should be able to do. A person can be mature enough to engage in the sex but not understand the lifetime ramifications of being photographed and exploited later by that. Sex is more of a liberty we shouldn’t easily take away even if there are issues, but being photographed naked isn’t the same level of liberty deprivation to prevent laws against it.

    On the other hand, taking or having the pictures shouldn’t rise to the level of lifetime sex offender. Where the law fails miserably here, is the lack of different levels of severity. I would have preferred the judges voided the charge because of it being excessive to the point of cruel and unusual, and sent a message to legislature to create laws appropriate to the circumstances. I guess their hands were tied though, since that wasn’t the defense the lawyers put forth.

    • AlexO

      Well, the primary reason why our national age of consent is 18 along with the various other age 18 laws is because our public education generally continues until the person is 18 years old. Most of the developed world has age of consent in most respects at 16 for the same reasons we established our laws. So saying sex before 18 is fine but not other things because you can’t think yourself yet, has little validity in terms of actual science.

      If you’re going to legally allow sex at 16 along with everything else that results from it, such as creating a new human being that you’re 100% responsible for, you’re old enough to make a proper decision about being photographed nude.

      • Chris F

        @AlexO

        “If you’re going to legally allow sex at 16 along with everything else that results from it, such as creating a new human being that you’re 100% responsible for, you’re old enough to make a proper decision about being photographed nude.”

        But, we have plenty of laws that kick in at different ages. Driving at 15 or 16, voting at 18, drinking at 21…

        So it’s all somewhat arbitrary. The point is, legislature, the people we vote in (or not), comes up with these “laws” and sets the ages. As long as they make sense to the majority, the age set for different things may be different. It sucks it can’t be based on an exact science, but that’s the system we are stuck with until a better one can be created and accepted.

        So, for this case, I don’t see any way to get enough people to complain to get the age of consent reduced for having nude pictures taken and the only argument feasible would instead be for a punishment that fits the crime and not one size fits all.

        Many states have tiered levels of sex abuse crimes based on the age of the victim and/or age of victim compared to the accused, so I don’t see why it’s unreasonable to push for that here.

      • someone who cares

        The age of consent is ridiculous as it has a lot more to do with maturity than age. In Europe, there really isn’t an age of consent. There is also no drinking age, and we have not even a tenths of the problems that we have in the US. Education goes a long ways. Here in the US, teenagers drive on our Freeways, along with adults who have driven for ages. Nobody says to stop having our “children” drive to protect them. So, why is there a double standard when it comes to sexual activity? If they are old enough to drive on our dangerous freeways, they should be able to make decisions about their sexual activities. Grow up US. We can educate our “children” to make the right decisions, and then hope for the best.

    • Joe

      For starters, the atomic argument about CP is that it is a depiction of a crime. Never mind the fact that owning imagery of a bank robbery or a murder is perfectly legal, in this case it was explicitly determined that no crime had taken place. So no criminal activity was recorded. What is the crime, then? Taking a photo of a non-crime scene?

      The fact that he kept the photos (to himself) is immaterial. The second they were created on his phone the offense was committed.

      Then, if this defendant is prosecuted and punished for possession of these photos, why is not the model? She was not forced, willingly participated. Is it that he is over an arbitrary age, and she is under the same? If a crime was committed by posing for and taking these photos then she MUST be held complicit. There is a whole branch of the criminal “justice” system dealing with juveniles, and clearly they can be treated as adults for anything and are, any day of the week. Is it that he is male and she is female?

      There is no shortage of 17, 16 year olds engaging in conduct where one can certainly say they cannot foresee the ramifications. Again, off to juvie they go, and very very easily, adult prison. LWOP – not a problem.

      In this country, less than 15 years ago, a person was executed (!) for something he did when he was the same age as this CP victim (who apparently cannot be expected to realize that photos live in perpetuity and can be shared with the same technology she had probably been using since her pre-teen years).

      Am I to believe the 17 year old in the gas chamber (male, of course) should have foreseen the ramifications of his actions to the point of being killed for them, while this 17 year old CP victim (female, of course) cannot be expected to understand the lifetime ramifications of willingly being photographed and exploited later by that? By a device she has probably, herself, owned, for 10 years? I laugh…

      On that note, the hope for different levels of severity made me giggle a bit. All or nothing, black or white is the hallmark of the registry. A course in computer graphics or a sensitivity workshop might be an appropriate consequence. But, god, no! After all, we are talking about (17 year old) chiiiiildren and sex! But at the end of the day none of this is punitive, so it is all good.

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