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Janice's Journal

Janice’s Journal: Child Pornography Laws Should Protect, Not Prosecute Children

The highest state court in Maryland ruled yesterday that a teenage girl could be prosecuted for distributing “child pornography” because she shared a one-minute video in which she was engaged in a consensual sexual act.
Has the world gone crazy?
“Child pornography” laws have been passed in every state in the nation. And in each of those states the purpose of the laws is to protect children from abuse and exploitation.
Protecting children from abuse and exploitation is a noble cause. However, it is not noble to prosecute children who are neither abused nor exploited.
In this case, one of the state government’s arguments is that the teenage girl should be prosecuted because “there is a potential for the image to fall into the hands of adults who traffic in child pornography.” While that may be true in the abstract, the Court cited no evidence that an adult had distributed the teenager’s one-minute video.
Instead, the Court cited evidence that the video was initially sent to two close friends, both teenagers. Unfortunately, one of those friends ultimately shared the video with a school official who was an adult who subsequently shared it with many other adults, including members of law enforcement.
Given these facts, who is the actual distributor of the “child pornography” in this case? And is the school official, the first adult to view the video, a trafficker of “child pornography” because he showed that video to other adults?
It appears that the most rational person in this case was the accused teenager who argued that the state’s “child pornography” law was intended to protect, not prosecute minors victimized and exploited in the production of sexually explicit videos. Unfortunately, the Court disagreed with the accused’s position and ruled instead that she could be prosecuted for distributing the video in question.
In its decision, the Court blames the Maryland State Legislature for existing law that allows for the prosecution of teenagers for sexting. The Court then notes that 21 states currently have laws that allow such prosecutions – Alabama, Alaska, California, Delaware, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Hampshire, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Virginia, Wisconsin and Wyoming.
If the Court’s statement is correct, it also means that 29 states do not allow teenagers to be prosecuted for sexting. It is therefore incumbent upon the 21 states to immediately begin revisions to their “child pornography” laws so that those laws fulfill their stated purpose of protecting children and do not instead prosecute children.

CP Case – Maryland – Aug 2019

Related

https://slate.com/technology/2019/08/maryland-sk-court-case-teen-sexting-child-pornography.html

Join the discussion

  1. Jack

    It’s exactly the same as the prostitution laws I’m afraid. The way they’re set up if a prostitute is raped by a client she can’t tell the cops because she’ll be arrested. This way if a teenager is coerced into something similar by an adult they won’t tell anybody for the exact same reason.

  2. R M

    Maryland and all States should realize that teens now have digital access to others (not to mention to the world). IF there is a crime here, it’s on the parents (or whoever) who allow this access. Teenagers will be teenagers, somewhere along the long the line they experiment, kiss, touch, have sex, etc., there is no magical age line. Why prosecute them? We did it, so will they.

  3. Laura

    Indeed…the world has gone Topsy. So, if the teenager (in this case) can be charged then what about the 1000s of “Other” illegal image convictions where teens shared and those on the receiving end were the only ones convicted and the teen that sent it were not charged with anything? Remind me again how this is rational?

  4. SR

    “In its decision, the Court blames the Maryland State Legislature for existing law that allows for the prosecution of teenagers for sexting.”
    ——————————————————————————————————————————-

    This is one of the worst arguments a judge can make as to why they’re ruling against the defendant when they know it’s wrong. Grow a damn pair and do the right thing! Let the bastard DA’s be the ones who have to file for an appeal. Let it be on their direct record that they want to prosecute a minor BECAUSE THEY CAN.

    If DA’s can drop cases of CP because the defendant requested to look at the program code that was used by LE to catch them on the internet, and they don’t want to reveal said code, they sure as hell can drop exactly this kind of case. It takes a really messed up person to push for something like this.

    And even more shame on any politician that doesn’t want to correct this. I truly hope their children and grandchildren get caught up in their quest for points.

  5. H m

    The use of the database like SOR never was really about ” protection of vulnerable persons” and far more about ” assisting law enforcement” with their use. SCOTUS stated ” Dangerousness ” was not the reason for inclusion rather it was the fact of conviction that triggered states duty to ” inform” the public via www broadcasts.

    Time has proven the regime ineffective in lessening recidivism, but still informs. That is the nature of the machine driven regime it will continue to broaden its scope to include children precisely because the motives for promulgation were political in nature.

  6. Dustin

    So let me get this straight.

    According to the law, she’d too stupid to make decisions for herself regarding sex, yet she’s prosecuted as an adult because she’s old enough to know right from wrong and appreciate potential consequences from her actions despite her age.

    Got it.

    Occurred to me that the generation in most legislatures now were in high school when someone decided it would be a good idea to distribute condoms in school, with their enthusiastic support I’m sure. Funny how they now expect children nowadays to be watching Sesame Street and playing with Barbies and GI Joes until they turn 18.

  7. James

    One thing that may be noteworthy about the impact of the charge, would be the potential for the teen to be subject to the registry should she move to another state eventually. As many of us can attest, criminal conduct that does not trigger registration in one state may trigger it in another. While some people may think this case is of little consequence because she does not carry the sex offender label presently, one day she may find herself in a legal mess elsewhere due to this charge. She is right to vigorously pursue any legal remedies available to her to have it completely removed.

  8. kat

    The world has indeed “gone crazy.”

    • Tim in WI

      @Kat,
      Convincing the people that a database machine could prevent attack without first imposing affirmative restraint was not easy but was accomplished via the sexual oriented offender.
      The big data brokers like AOL, Google and Facebook all exploit the free flow of information to manipulate profit margins by advancing those agendas. Modern day politics thrives on database uses to include uses to draw districts for congressional representation.

      Machine value outweighs human value, first promulgated via the ” registrant. “

    • MatthewLL

      Th Huff article is interesting and depressing. People should now target the DA who prosecuted this young girl for normal teenage activity, making him out to be the monster that he is. I would donate to the cause. He/she did not have to do this and should be removed from office.

      • Joe

        “Monster”? Enforcing the law makes this prosecutor a Monster? Enforcing the law is his job. He should lose his job for…. doing his job? What is this? Judge Persky in reverse? Why do we have laws and a criminal “justice” system when the mob’s views du jour override the rule of law?

        If a whole demographic is criminalized absent of prosecutorial discretion, then by all means, let’s re-write the law. Until such time I expect – and demand! – that my law enforcement officials actually enforce the law.

        On a personal note I am not sure I agree with characterizing this girl’s conduct as “normal teenage activity”. That is my opinion. But the law is the law.

        • TS

          @Joe

          I think it’s the lack of latitude used when doing this case. DAs have that ability if they want to use it.
          Yes, by the letter, the job was done here. However, as seen in Canon City, CO, there was serious consideration in latitude by the school and DA (and the state too in the end) when students were doing the same. The case in IA was similar with the bully DA on the female student even though no nudity was involved. I think prudent moves can be made at times even when we want the law enforced.

        • SR

          Joe, you should look up Nuremberg Trials. Just because something is the law, it doesn’t make it just and should be asked to be blindly enforced. DA’s have dropped numerous cases over something as superficial as not wanted to disclose the code for programs that are used to catch people on line. Not because the person is innocent, but because they want to guard a secret. If they can do that, they can certainly choose not to prosecute a young teen for taking a nude selfie, something that nearly 25% of today’s youth do. When a DA insists on pushing to have kids as young as 8 committed to a life time of SO registration, they really shouldn’t be in that position of power as they clearly just want to pad their resume for their future endeavors.

    • Tim in WI

      Jack,
      Thank you I will use this article during voir dire very soon at FTR here in Wisconsin. The data firms have had their way long enough. Once the people intend to indenture some to their maintenance naturally the sky is the limit with respect to database use. Enslaving humans widely to their maintenance runs contrary to the notion that free men are paid to maintain databases & machines. all this Contrary to ANY form of republic. Why? MN>HN=null ( I. Asimov)
      All republics of free persons necessarily requires that human need favors over machine need.

      Some don’t like it that way. Today on c-span aired a Senate homeland security gathering chaired by Ron Johnson R WI. discussing the ill effects of big data and terrorist threats and crime exacerbated by interconnectivity. ID THEFT, online child enticement. and all the rest of the crop wrought via databases. SOR & SEC 306 granting fed liability immunity for firms engaging third party inputs.

      • TS

        @Tim in WI

        Have you read “Win your case” by Gerry Spence? Great read and highly recommend for anyone going pro se. Don’t doubt your ability here. Just a suggestion to maybe find a nugget or two by a winning trial lawyer. There’s a Voir Dire section too.

  9. Joe

    I am gonna disagree…. current and valid law:

    A visual depiction of a minor (a person one second under the age of 18) engaged in sexual conduct or in a state of nudity IS Child Pornography.

    When a person, any person, has in their possession a visual depiction of a minor (a person one second under the age of 18) engaged in sexual conduct or in a state of nudity they ARE in possession of Child Pornography.

    When a person, any person, creates (and shares) a visual depiction of a minor (a person one second under the age of 18) engaged in sexual conduct or in a state of nudity they ARE a Child Pornographer.

    That is the law. The law should protect society as a whole. Not just children. Or adults. Or fat people. Or skinny people. Society as a whole. Breaking a law should apply to all people. When they are below a certain age, they are dealt with in an age appropriate system. But they do not get absolved of breaking the law.

    That the imagery is of the person themselves is completely immaterial. If the child pornographer is a minor they may be dealt with in juvenile court. If the state’s laws allow for it they may be spared sex offender registration. If such registration is mandatory – even for juveniles, on the list they go. Let’s remember that such registration is not a punishment.

    That is the law. Why it is illegal to film completely legal conduct – who knows. If this is child pornography then 30 states allow sex with CHILDREN. Gross. But okay.

    But until such time that this is addressed the age of the subject is critical, not the age of the photo/videographer or owner of the phone. That this girls should get off scot-free but a 19 year old who receives her recording has his life destroyed makes no sense.

    That this guy below should get 15 years in federal prison (no parole) for having in his possession the images taken by the 16/17 year old (without subsequent sharing) and that this girl should get a complete pass for distributing! the same kind of imagery I do no understand. I understand one is state and one is federal, but come on!

    https://ethicsalarms.com/2011/03/01/outrageous-prosecution-the-eric-rinehart-story/

    So yes, this girl IS a Child Pornographer and should be prosecuted as one, as she was. Yes, this girl IS a minor and should be adjuticated in juvenile court, as she was. I could have seen the need for discretionary sex offender registration, but the presiding judge did not. All is good….

    • Will Allen

      Interesting take. But you give way, way too much respect to laws. Valid governments make valid laws. Criminal regimes don’t. But anyway …

      Do we really want a government that says it is illegal for a person to take certain kinds of pictures of themselves in their own homes? Do we want a government that tells a 16 year old that it is okay for them to drive a murdering machine on a highway to kill other people but they may not take a picture of themselves nude in their own bedroom? That seems to be too much. And I would bet that a vast majority of minors will take nude photographs of themselves. Not 25%, more like 80%.

      On the flip side, I can see where we don’t want pornography of people under the age of N to be floating around and if those people do photograph (or whatever) themselves, that will certainly happen. I do think if a photograph “gets out” by any legal means (not theft of a phone, I suppose), then probably the photographer needs to be held legally accountable. It has to be some sort of sealed juvenile adjudication though. Punish the person so they stop but, they are children after all and victims, so they can’t be held very accountable for the bad judgement that we EXPECT children to have. We can’t use that lie of trying the person “as an adult”.

      Your statement of “I could have seen the need for discretionary sex offender registration” is 100% wrong. Registries are pure stupidity. There is never any need for it.

    • Mike G

      Just curious, when did nudity become pornography? I must have missed that.

      Do we now have people in prison for photographing their kids in the bathtub or running naked through the sprinklers in their backyard? What about naked babies?

      So when nudity became pornography, was there a cutoff age specified? 2? 4? 8? 10? Or does nudity as pornography run from one second under age 18 to one second after birth?

      • SR

        Parents actually have gotten in trouble for taking the type of pictures of their children you describe. Do a Google search for some articles. Are you surprised when teens are being treated as CP pornographers for taking nude selfies? Of course parents are going to get in trouble for taking nude picks of their young kids.

        • Mike G

          Okay, I’ll repeat my question: When did nudity become pornography? Because it wasn’t before, knowing from personal experience. It used to be that nudity was fine unless it was sexually suggestive, sexually provocative, or sexually seductive, or depicted sexual acts (obviously).

          So when did the Feds change the definition so that any nudity up to turning 18 is child porn? No wonder they are prosecuting all these kids, in that case!

          Of course, that means probably 50 million or more parents in the US are in possession of child porn in their kids old photos box in their closet.

      • Notorious D.I.K. / Kennerly

        Mike G., That’s a good question. I sort of woke up some years ago and realized that child nudity had, indeed, become illegal even though it had been completely legal forever before that. So all of those naturist magazines in which whole unclothed families played volleyball and swam unmolested at nudist resorts are arguably now all “child abuse material.” This is what happens when politicians go on a mission that no one dares question. And as for what all of the material which sends (mostly) men to prison for possessing consists of? Your guess is as good as mine since we are not legally allowed to view that material to know what it is that got those people in trouble. That’s a scary criminal justice concept and a scarier unfolding social phenomenon. Oh, and it’s eighteen, by the way.

        • Mike G

          Hi N D.I.K. / Kennerly,
          Sorry, I didn’t see your comment before I commented again just above, so I was kind of redundant. You are right, it is a scary criminal justice concept and scarier unfolding social phenomenon. As soon as I get off this damn registry or find out I never can get off, I’m out of here to a country that still has common sense and doesn’t try to win political points by persecuting/prosecuting its own citizens.

        • Notorious D.I.K. / Kennerly

          Mike, that damned law has been changed so frequently that people stopped paying attention to the details. I know that I was dumbstruck to learn that simple nudity was, for all practical purposes, illegal because that had always been a pretty bright line previously.

          Most people are too young to remember that there was a period of time when there were no federal laws against c.p. Until the late ’70s it was sold openly in much of the country (in dirty book stores, of course). And even after then it was still legal to possess but not legal to buy or sell. Now, it’s gone to some bizarre extreme in the other direction.

  10. Disgusted in Michigan

    Seriously? Convict her of a sex crime? A possible lifetime on the sex offender registry? Everyone as a child has done something stupid or had a lapse in judgment. This certainly is not criminal behavior but poor judgment. If the law is to protect children then why prosecute her? Obviously she as a minor is not legally capable of making adult decisions so why treat her as such? Its the same laws that would prosecute an adult for having sex with her because she is not at the age of consent, but then the law prosecutes her for making a poor decision.

  11. Chris camden

    It just floors me how ridiculous, hypocritical and counter-productive this is. Prosecuting a child for distribution of child pornogrophy of themself? Yes the world is going crazy. So if we catch a child mastubating, that child is technically molesting him/herself. That child should be prosecuted, obviously tried as an adult, and sent to adult prison for a very long time. Then put on the SOR for life because we need to protect this child from him/herself! If this child commits suicide (because obviously their life will be ruined by this whole ordeal), no one will care.
    “If all the sex offenders killed themself, the world will be a better place!”
    That’s what most people will think. I hope this world gets a hold of itself soon. Stories like this one is why I sometimes feel hopeful when the news reports that an asteroid will probably very soon hit the earth and wipe us all out.

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