Indefensible

>> Monday, January 19, 2009

I really try not to write about law but sometimes it just happens, usually because of some rampant idiocy.

There are a lot of reasons to not write about law. The biggest one is simply the fact that law is what I do for a living, while Shoulders Of Giant Midgets is largely a relief and escape; outsiders tend to find the whole law thing more fascinating than it usually is,1 but I'd really rather talk about Star Wars or something. Another reason is that you find yourself looking at courting controversy you just don't need.

Which is what I'm afraid this post might do. But, you know, where angels fear to tread and all that, and I'm definitely not an angel so I guess in that dichotomy I'm left a fool.

So, let's talk about kiddie porn.

Now, see, I'm already having to figure out how to navigate a minefield I see before me. Kiddie porn, for the record, is pretty repulsive, which seems like a statement one shouldn't even have to make. It should be obvious. But the inspiration and subject of this entry is an excellent example of just how stupid kiddie porn laws actually are, hence the obligation to state the obvious.

Child porn laws have (one hopes), the noblest of intentions: somebody who coerces a child into a physically or psychologically abusive situation and preserve it in some media ought to be punished for it. And those who traffic in such media ought to be punished for encouraging its existence; even if these individuals haven't abused a child themselves (and let's avoid, shall we, the assumption that somebody who has looked at child porn will go out and abuse a child--even if there were an incontrovertible basis for that assumption, it would be irrelevant2), they've implicitly encouraged others to make abusive photographs, videos, etc.

Part of the problem, of course, is that a presumption of harm, however probable, doesn't equal actual harm (at least not in the sense of abuse). What happens, for instance, when the child pornography is manufactured by the child?

In Greensburg, Pennsylvania, three teenage girls (14 to 15 years of age) are being prosecuted for sending naked photographs of themselves to three teenage boys (16 to 17 years old). The girls are charged with manufacturing and disseminating child porn, and the boys with possession. A stupid thing to do? Absolutely. An example of why, if I had a daughter, I'd be loathe to give her a cell or a cell with a camera? Yes, call me a Luddite and tell me about how all the kids have them now and run to your bedroom and slam the door if you'd like to. Were I to find out my fifteen-year-old had been taking naughty pictures of herself, I would probably wonder where I'd gone wrong.

But prosecutions? Really?

Here's police Captain George Seranko explaining the, ah, "logic" behind the criminal charges:

In the WPXI story, which included contributions from the Associated Press, Saranko indicated that authorities decided to file the child pornography charges to send a strong message to other minors who might consider sending such photos to friends.

"It's very dangerous," he said. "Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture. You don't realize what you are doing until it's already done." (Seranko could not be reached for comment on Thursday, and a woman who answered the phone at the Greensburg Police Department said, "Our department is not doing any more interviews on the case.")


No, I don't know how a cell phone gets put on the internet, either. I'm assuming he means that the pictures can be uploaded and distributed. Which, okay, is true, but somehow prosecuting the victim of child pornography for allegedly victimizing herself seems quite a lot like burning the village to save it.

But, of course, the thing of it is that if these kids really took pictures of themselves, they're guilty as all hell. Because we've separated things like actual harm and intent from the letter of the law because, really, they're hard to prove and child pornography (of the kind we usually think we mean) is nasty, nasty stuff. And it is, it's utterly indefensible. But it got to be too easy for somebody to come into court and to say, well, you can't prove this "child" was underage or there was no actual harm done or this was my freedom of speech--and we can't have those defenses, so the laws were revised and revised and upheld on appeal time and again and refined until the crime was pure act without harm or intent: take the picture, break the law.

I have a friend who is terrified that if she takes a picture of her kid in the bath, she'll be prosecuted.3 And I can't tell her she has nothing to worry about, because of course she does. That photograph might one day end up on the internet where everyone in the world can get access to that juvenile picture. And it's stupid, stupid, stupid. It makes sense to say that an adult who takes advantage of a child ought to be mercilessly hammered, but dumb teens who take self-portraits? Mothers taking naked baby pictures?

I suppose there may be some good in these Pennsylvania kids getting prosecuted: maybe somebody will take a look at the statute and realize that what we've done is taken our fear and guilt that we didn't do enough the last time some malicious bastard committed an atrocity and turned it into a law by and for the morons.





1A realistic law show would consist of people sitting around waiting for mind-boggling stretches of time, waiting for their case to be called. "What's going on, McCoy?" "Judge is talking to the Grand Jury foreman about something that came up all of a sudden." "You know how long it's going to be?" "Hell, I thought I was starting an hour ago and I haven't even been able to call the calendar yet." BOMPBOMP

2We punish actions, not intentions or predispositions in the free world. And we already have well-defined crimes to punish somebody who commits actions involving sex with or abuse of a minor. A person who possesses child pornography might molest a child, or might not--if he doesn't, then you can't prosecute him for thinking about it, and if he does you could prosecute him for something else.

Rather, the actual harm in possessing child pornography (if any) is essentially that of an aid-and-abettor. The possessor has given somebody else a reason to manufacture the material, and the manufacture harms a child.

Or at least that used to be the rationale behind all this. In fact, our society has now reached the point where even if there is no actual harm of a minor--if the sexual activity involves depicted or computer-generated minors, it's still illegal in some jurisdictions. Lest this seem like a good idea, I might remind the reader:

But saying o'er what I have said before:
My child is yet a stranger in the world;
She hath not seen the change of fourteen years,
Let two more summers wither in their pride,
Ere we may think her ripe to be a bride.

Romeo And Juliet, Act I, sc. 2


...meaning that Franco Zeffirelli is but one of the many perverts who, in the past four hundred years, have repeatedly depicted a guy trying to get under a thirteen-year-old's skirts; in Zeffirelli's depiction, this includes a scene of the famous lovers in bed and partial nudity; at the time Olivia Hussey's brief topless scene in the 1968 Romeo And Juliet was filmed, she was fifteen. This smut is available from Amazon, heaven help you if the Feds discover you own a copy.

Not to spoil it for anyone whose mind is yet unsullied by Shakespeare's perversions: later there's a gang fight, at least one murder, and a suicide pact. Did you know they actually force children to read this garbage in some schools, at the taxpayer's expense?

Speaking of which, I haven't seen the Zeffirelli R & J since either junior high or high school (I no longer remember which), when an English teacher realized too late that a breast was about to be flashed across the screen and heroically dived to block the sight with her hand (she missed). I remember this teacher suspended in the air with her fingers outstretched far more clearly than I remember the movie or the classroom or even her name (or what grade I was in, obviously); honestly, it wasn't like she was keeping us from seeing anything we hadn't seen before. These days, though, there'd probably be school board hearings over it, and maybe a segment on O'Reilly.

3"Somebody" I know has or had a similarly-themed photograph of two young children, a brother and sister, naked and playing together in a bathtub sometime in the late 1970s. A photograph which I am aware of because this "somebody," who shall remain nameless, routinely pulled it out and showed it to several young women that a certain anonymous party (nobody you know) dated throughout high school and college and brought home to meet this "somebody."

The production of this photograph consistently met with our anonymous party's great embarrassment and the apparent delight of "somebody" and the young women in question. I have some reason to believe that the young women who were subjected to the image suffered from various mental and emotional disturbances, possibly psychic trauma caused by exposure to the image in question, though that's mere conjecture. Certainly a consistent and widespread symptom of the women's emotional distress was their shared inability to recognize that the anonymous party in question was not, as they might have believed, an emotionally-retarded, awkward, neurotic and immature jackass, but rather a brilliant, witty, and handsome future lawyer and blogger with excellent taste in music.




6 comments:

MWT Monday, January 19, 2009 at 3:03:00 AM EST  

Yay entertaining footnotes. :)

Janiece Murphy Monday, January 19, 2009 at 9:21:00 AM EST  

So, providing as a "given" that child pornographers and distributors are the scum of the earth and should be endlessly hammered (and they are, and they should be - my neighbor is a postal inspector, and the stories would curl your hair), what's the answer here?

I certainly don't want the laws relaxed.

Is this just an example of an overzealous DA who didn't have to press charges, but did?

Eric Monday, January 19, 2009 at 11:53:00 AM EST  

Janiece, I had a much longer response that the computer decided to eat when Firefox froze for no discernible reason. Let me try again.

The problem with child pornography laws right now is that they are imprecise and fail to address the actual harm of sexually exploiting a child, which is what typically is happening when child pornography is made.

You have to say "typically" because, ironically, it's not a given that child pornographers and distributors are scum of the Earth, and here's why: the children referenced in the story above are child pornographers. The teenage girls made sexually explicit images of underage children (who happened to be themselves) for the titillation and prurient interest of the boys they sent the images to.

They're horrible criminals, scum of the Earth as the law is presently conceived and written. Yet that's clearly a farcical result.

I don't know that the DA in this case can be called "overzealous": a crime has been committed, and the DA's office is prosecuting it. The DA has discretion not to prosecute, so yes, the DA could have allowed these kids to get away with manufacturing, distributing, and owning kiddie porn (and maybe should have), but this may be an instance where it's unwise to blame the DA's office for doing what the law presumably asks for.

It's people who are sexually exploiting and abusing kids who should be hammered relentlessly. Unfortunately, in our overzealousness to make that happen, we're becoming irrational.

Janiece Murphy Monday, January 19, 2009 at 12:25:00 PM EST  

Hm. I should of know better than to use imprecise language. :-)

I think we can all agree that those adults who abuse, manipulate and sexually exploit children for the edification of the pedophiles among us are the scum of the earth.

By that definition, the girls in question are certainly guilty of poor judgment, but not being child pornographers.

Given those assumptions, and the fact that the child pornography laws are imprecise, what options did the DA have in dealing with the situation without relaxing the laws that allow them to prosecute the scum?

Eric Monday, January 19, 2009 at 8:21:00 PM EST  

The DA's options, as the laws are presently written, are prosecute or not prosecute, Janiece. And not prosecuting would, technically speaking, be the option that involves relaxing the execution of the law.

The DA doesn't write the law, he just prosecutes violations of it.

The thing that has to be repeated is that as the laws are written now, these girls are child pornographers. Technically speaking, they are "scum" as the law defines it--which is, again, obviously an absurd conclusion. So the problem is with how the legislature has defined the concepts of "child pornography" and "child pornographer."

There's not a simple solution: the choices, as I see it, are revising the law (and acknowledging that making the law more rational may come at the cost of making some prosecutions more difficult) or leaving the law as is (or continuing the current trend of stripping defenses and making the law "tougher" in other ways) and acknowledging that we are criminalizing people who we didn't mean to as the price for getting the bad guys--e.g. sexually curious teens with poor judgment and access to cameras.

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