This news item seems completely out of whack: A 16 year old girl and a 17 year old boy in Florida had sex and decided during the course of their tryst to take digital photos of themselves humping like rabbits which the girl then emailed to the boy. Both claim they didn’t show the pictures to anyone else, but somehow the police found out about it and both kids end up being arrested. Not because they had engaged in sexual activity, but because they had produced child porn in the process:
On March 25, 2004, Amber and Jeremy [Not their real names. -Ed] took digital photos of themselves naked and engaged in unspecified “sexual behavior.” The two sent the photos from a computer at Amber’s house to Jeremy’s personal e-mail address. Neither teen showed the photographs to anyone else.
Court records don’t say exactly what happened next--perhaps the parents wanted to end the relationship and raised the alarm--but somehow Florida police learned about the photos.
Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.
Again keep in mind that under Florida law the teens weren’t in trouble for actually having sex:
“The crux of the state’s interest in an adult-minor situation is the prevention of exploitation of the minor by the adult,” the majority said at the time. The court ruled that a Florida statute punishing sex between teens was “unconstitutional as applied to this 16-year-old as a basis for a delinquency proceeding.”
The same applies to Amber and Jeremy. Even though he is a year older than her, he is still a minor in Florida.
In other words, under Florida law, Amber and Jeremy would be legally permitted to engage in carnal relations, but they’re criminals if they document it.
Child pornography laws are intended to prevent the exploitation of children by adults, but it’s hard to see how anyone in this situation has been exploited. As far as the law is concerned both of them are considered juveniles and both claim that the pictures were never intended to be revealed to anyone else. The girl in this case ended up pleading no contest to the trial judge and reserved the right to appeal based on her claim of a constitutional right to privacy. The appeals judges didn’t buy the argument in a 2 to 1 decision against the girl that says she was too young and stupid to make a valid decision about the risks of taking pictures of herself having sex:
Judge James Wolf, a former prosecutor, wrote the majority opinion.
Wolf speculated that Amber and Jeremy could have ended up selling the photos to child pornographers ("one motive for revealing the photos is profit") or showing the images to their friends. He claimed that Amber had neither the “foresight or maturity” to make a reasonable estimation of the risks on her own. And he said that transferring the images from a digital camera to a PC created innumerable problems: “The two computers (can) be hacked.”
Judge Philip Padovano dissented. He wrote that the law “was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child’s right to privacy under Article 1, Section 23 of the Florida Constitution.”
So the argument here is that because there is always some potential risk that the pictures could be released and because the girl is too stupid to realize the possibility of such a risk the court is going to convict her of producing child pornography. For her own good so to speak. No word on how the boyfriend has pleaded in his case. The full article contains a more detailed accounting of the majority and minority opinions of the case and you can read the full opinion here.
This just seems idiotic to me. It’s OK for the teens to have sex with each other, but not OK for them to photograph themselves doing it until they’re 18 and they’re claiming this it to protect them from themselves. Not sure I see how this helps the problem at all.
Link found via Boing Boing.
Posted on 05/17/2007 at 06:43 PM 
no ideological bias here
Funny how the anti-sex hypocrisy and hysteria always finds a way to hide behind badly applied law. I suppose Consi would support prosecution for a fourteen year old who recorded himself masturbating. From my view the law itself, by not making exception for the private acts of those legally engaging in sex, should have been found unconstitutional. But no one ever accused the Florida legislature of being fair or literate.
It’s clear that there were constitutional issues with this case, and the dissenting opinion had just as much precedent to back it up; in fact a more closely related case than the majority chose to apply. Go read the decision. The majority talks an awful lot about the State’s interest without ever explaining why that interest is so pervasive. The rationale sits entirely on “could haves” and the presumption to know the intent of the kids and the limitations of their character. Also mentioned is the states compelling interest in keeping it from happening in the first place-and good fucking luck with that!
If this case were about anything else but so- called child porn, privacy would be paramount. The fact that there exist people who would seek to profit illegally should not change an expectation of privacy unless one of them actually succeeds.
But I forget-social conservatives love thoughtcrime, hate sex, and don’t give a rat’s ass about the consequences to freedom. The state doesn’t own my body or anyone else’s. Sometimes I think that the only way pigs will learn this lesson is on the end of a pitchfork, but that’s being optimistic. All they have to do is say “child porn” and the state’s interest will prevail.
So now two healthy kids are “child pornographers.” And all I can do is say to the sex-haters one more time-"Sorry about your penis!”