Teen sex in Florida is legal, but pictures of yourselves in the act isn’t.

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.

52 thoughts on “Teen sex in Florida is legal, but pictures of yourselves in the act isn’t.

  1. Well, Genarlow Wilson should have taught us all that its not intent that counts, but the LETTER of the law, people! Stupid of them not to be lawyers and know all the hypocrital intricacies of some of their laws!

  2. I don’t see any problem with the law.

    The age of consent is as low as 14 in Canada and some USA states. While two 14 year olds could have sex, they can not take pictures or video (Even for legitimate personal use only). These laws exists simply to prevent the production and distribution of what most people consider child pornography.

    Colorado: The unfettered age of consent in Colorado is 17, however there exist in the legislation close in age exceptions which allow those at least 15 and less than 17 to engage in acts with those less than ten years older.

    Being 21, I can go down to the local highschool woo a girl into becoming my girlfriend and legally have sex with her.

    Besides, the real thing is MUCH better than any picture. tongue wink

  3. These laws exists simply to prevent the production and distribution of what most people consider child pornography.

    At first I thought they were stupid charges against these kids but after reading Moloch’s LONG (for him) post, I’m gonna do something I never thought I would – I’m gonna admit he showed me another way to look at this.
    Good call, Moloch – something tells me I’ll never fuck a 17 year old again but I recall what they looked like.

    I stood beside Chloe and had a beer or two in the downstairs bar before I went overseas nearly 4 decades ago.
    From memory the painting is near enough to ‘life size’ and since 1908 the wowsers were never able to remove her.
    She’d not have survived in AmeriKa.

    The painting was damaged in 1943 by an American serviceman who threw a glass of beer at it.

    A wowser is… a person who is more shocked at seeing two inches of underskirt than he would be at seeing a mountain of misery.
    Or
    A wowser is [a] simple, satisfying, succinct, single word which aptly distinguishes the whole race of windy. watery, cantankerous, snuffling Chadbands [sic?], Stinggingses [sic?], Holy Joes and Scripture-spouting sneaks, hypocritical humbugs, and unctuous, dirty-minded rotters, who spend their time interfering with the healthy instincts and recreations of healthy-minded, honest humanity.

  4. I can’t agree with the court’s judgement on this issue. While the ruling is stupid, its not entirely unwise. I have to admit that the court had a point in that, were the images to have been reproduced and or distributed, any unknowing recipient could have been prosecuted under the law. Granted, that’s something of an obscure notion, but look at what happened with Traci Lords. She was a willing participant who not only allowed herself to be photographed underage, but she provided them with fake identification to do so. Were they liable? I don’t think so, but the courts disagreed and the people involved were prosecuted. They may have done nothing wrong, but the false accusation of owning child pornography is as bad wrongful rape accusation. Its doesn’t matter whether or not the individual involved was guilty or not, the court of public opinion finds the fault in the accused, even if they’re the victim. So while I agree that the charges were unnecessary and a better solution could have been found such as destroying the images and counseling, a judgement of some kind was necessary.

  5. Well, I think this just points out some of the problems with child porn laws.  Child abuse is child abuse and already illegal under other laws, and in the rare cases (like this one) where no child abuse is taking place, what exactly is the problem?  That someone somewhere might get a boner?

    And failing to distinguish between children and adolescents legally defined as minors is unconscionable.  This was not a 10 year old.  There may or may not be some good reasons to keep teens in some kind of legal limbo and deny them full rights to decide who they want to have sex with, but confusing them with actual children is idiotic or dishonest.

  6. Sheesh:  Some people’s priorities…

    Reminds me of the old joke:  Why don’t Baptists have sex standing up?  Because it might lead to dancing.

  7. This is just too fucking stupid for for me. A person over the age of 21 can stand naked in front of a mirror and take thier own picture. But a 16 year old would be committing a crime.

    I would be more interested in the legal disposition, and the overall security issue of who hacked the computers. Stoopid Stoopid Stoopid.

    Good job Judge Fuck.

  8. This problem came up in my Digital Forensics class, and the answer is, “There is no answer”.  Unfortunately the laws are still lacking in definitions of terms, and judges and prosecutors are still lacking in understanding of computer issues.

    Yes there is a risk that a computer could be hacked, but this risk is not worth sending someone to jail for, or even fining them.  Not unless there was a clear case of them making child pornography with intent to distribute.  And I hardly see having some pictures of sexual acts to be intent to distribute.

    But I think this stems from the issue that most states see having more than 3 pictures of child pornography to be beyond an accident.  And they kinda extrapolated this to these two individuals.  They had more than three pictures so obviously they had intent to distribute?  Whatever…

  9. The very idea of an American court claiming the authority to punish a person, however old, for taking pictures of their own bodies makes me sick enough to throw up all over the faces of those judges.  How warped this “freedom” of ours has become! 
      Two minors, photographing themselves, no intentional distribution, no exploitation by adults.  How exactly does that make anyone a pornographer except in the sick, twisted minds of the ever present anti-sex crowd?  Isn’t anyone else sick to death of this “for your own good” legislation? 
      In my perfect fantasy world, the police who investigated and arrested, the D.A., and the two overzealous judges should do 20 or 30 years each, since they are the only ones who see it as child porn, and they are the only ones exploiting, enjoying, or benefiting from the whole event. 17 year-olds having sex is not evil or disgusting in the least.  Grown men in positions of authority thinking that they have any business or right to get involved, now that is disgusting!

  10. SS, where did the church enter the fray? It’s just another example of thought crime taken to absurdity.

    The verdict may follow the letter of law, but the dissenting opinion has it right.

  11. So I wonder about the legality of a 15 year old who is suspect of a wart on his/her ass.

    He/She takes a picture of it with a camera phone, sends that picture to their computer so they can enlarge it, and forward that to their physician.

    Legal or Illegal ?

  12. SS, where did the church enter the fray?

    It didn’t, but Sadie likes to toss that into nearly every discussion if LJ hasn’t beaten her to the punch.

    The problem here is not the courts, the judges ruled as they should have.  If you don’t like the outcome, criticize the writers of the law. Personally, I think that creating an exception to the law to allow what would be child pornography in the hands of an adult to be perfectly acceptable in the hands of a minor.

    If you create an exception for Little Johnny to film his underage girlfriend you create a workaround for the perv.  Get little Johnny to film little Jane and simply access the child pornography via little Johnny’s computer.  I know its a stretch, because all seventeen year old boys are such wonderful decision makers and are oh so discrete.

  13. This

    Personally, I think that creating an exception to the law to allow what would be child pornography in the hands of an adult to be perfectly acceptable in the hands of a minor.

    should read:

    Personally, I think that creating an exception to the law to allow what would be child pornography in the hands of an adult to be perfectly acceptable in the hands of a minor would be a mistake.

  14. Consie, you’re a legal guy, you should know that the Judge is just flat out wrong on this one. Forget the morality at look at this statement…

    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.”

    That’s basing a judicial decision on a crime that “might” happen. No different that sending a gun owner to jail because he “might” get angry and shoot someone.

  15. …or showing the images to their friends.

    And how horrible that would be!

    And he said that transferring the images from a digital camera to a PC created innumerable problems: “The two computers (can) be hacked.”

    KPG is right. This is undoubtably the most feeble line of “reasoning” in this entire debacle of a decision. The second that people are breaking the law for crimes that “might” occur is the second we cease to live in a free country.

  16. If you create an exception for Little Johnny to film his underage girlfriend you create a workaround for the perv. 

    Consi, Laws will never be perfect. Thats why you should stick to as few laws as reasonably possible (that my libertarian view, and damn isn’t THAT world view successful – heck, I don’t follow it myself all the time).

    A law such as this which makes it illegal to have porn of your own self at under-age will hurt innocent people 9 times out of 10 (and you should realize that kids of 14 having sex is not all tthat rare anymore, if it ever was). 1 time out of 10, it will hit somebody who SHOULD be hit with it.

    But why make such a law in the first place? Its not as if child pornographers were that hard to convict in the first place, once you catch them. By adding such a law such as this, you only create more buereaucratic laws liable to snag the wrong people.

  17. CONSI: Sadie likes to toss that into nearly every discussion if LJ hasn’t beaten her to the punch

    Me!? What the fuck did I do?
    Me and the Moloch are the only bastards agreeing with you and the courts.
    I’ve been reading all the comments that disagree with me and I wish I hadn’t said a thing and then you come along and give me grief, by association, about something I never did.
    No! No! NO! Don’t go giving me no apologies, man. It’s too late. You’ve burnt your cake and I ate the fucking fucker.
    I mean, like, here I am … I mean, I’m just sitting here, on the Group W bench (ref: Alice’s Restaurant*** – remember Alice?), on the other side of the world and some bastard, not just any rotten bastard, a fucking North American bastard, rips into me, for what?
    Fucking nothing that’s what.
    Drag my good name through the mud … mumble fuck mumble fuck mumble fuck mumble fuck.
    Well, fuck you.
    I feel better now. wink

    ***Alice’s Restaurant – there’s nothing to look at on the YouTube – Putcha feet up and listen to it with stoned ears … pretend you’re in the middle of a war taking place in Vietnam in 1970.
    I’ve been crackin’ a grin over this for almost 40 years – hopefully I can continue to do so for another 40. smile

  18. It is insane to prosecute somebody because they migth commit a crime, or because they computers migth be hacked and the information will go worlwide, you cannot acuse somenbody for something that might happen in the future, or now the judges will support their decisons on psychics that guess the future.
    jajajaja only in the U. S. A.

  19. Ramses said: It is insane to prosecute somebody because they migth commit a crime

    I let this slide when KPG was talking about crimes that might be committed.  I need to set folks straight though.  Nobody was prosecuted for anything they might do.  They were prosecuted for what they did do. 

    So, to review, nobody was prosecuted for a crime that might happen.  They were prosecuted for an act that was on the books as being criminal. When law enforcement discovered evidence of the criminal act, law enforcement did what law enforcement does, they prosecuted the offenders.  Subsequently the law on the books making the actions illegal was challenged because there was no denying the act took place and as it stood, there was a crime.  Defense lawyers will do what they can do and this one did.  Once the law was challenged as unconstitutional, the court upheld the law utilizing a rational review.  In doing so, the court found the law to have at least one rational reason supporting it.

  20. Oh, and about this:

    Well, fuck you.

    I didn’t know you cared so much mate.

  21. I didn’t know you cared so much mate.

    I came back the same day … you took two weeks.
    I know who cares … you don’t even buy me flowers anymore.  cheese

  22. So, to review, nobody was prosecuted for a crime that might happen.  They were prosecuted for an act that was on the books as being criminal. When law enforcement discovered evidence of the criminal act, law enforcement did what law enforcement does, they prosecuted the offenders.

    Be that as it may, the entire law is built around the supposition that a crime could be committed. Why is it illegal to take the picture in the first place? Setting aside whatever moral qualms people may have against photographing a sixteen-year-old sexually, the basis of the law is anticipatory of a future inappropriate act involving said sixteen-year-old that has not as yet been committed by anyone. As far as a sound basis for a law goes, in my opinion this one is pretty flawed, especially since nothing non-consensual occurred.

  23. Be that as it may, the entire law is built around the supposition that a crime could be committed.

    It is not Sadie.  The state defined what the law was.  The act filmed was in contravention of the law.

    You are mixing the rationale that the Court employed in its rational review of the statute with the law.  Making that distinction is importatn to understanding why in my considered opinion, the Court did exactly what the Court was supposed to do. 

    You are quite free, and have every right, to question the basis for the law and whether there should have been exemptions for this type of situation.  However, that doesn’t make the crime at issue one that is based on a speculative act.  It simply means you don’t like the law.

    Why is it illegal to take the picture in the first place? Setting aside whatever moral qualms people may have against photographing a sixteen-year-old sexually…

    That’s a sweet setup.  If we set aside moral qualms people have about anything, then we can directly question and ridicule almost all the laws on the books.  Why for example shouldn’t we be able to kill off asshats, setting aside the moral qualms that people have about killing?  Nice.

    Debating the age of consent is a legitimate discussion.  Eliminating the moral basis for the concerns about whether a (fill in the blank) old is capable of consent improperly frames the discussion.

  24. As a smut peddler I have to say the court is right. The law is the law and underage sex on film is against the law. How hard do you think I would have press this kid to give me the movies, photos whatever? Not hard at all, all I would have to do is give him five or six thousand and I bet I could get them too quick. Also don’t forget that he doesn’t own the computer his parents do, so what would you say if his dad got charged with having child porn for what his son put on there? The law makes no distinction for intent it just says none under 18 can be filmed engaged in sex.

  25. 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!”

  26. I was convicted as “Pedophile” when I was 16. Luckily, they went extremely easy on me with their “punishments”. Since I was a minor myself at the time, nobody without some significant legal power has access to those records.

  27. One part of me wonders why, after 3 months, Moloch decided to ‘confess’ now or even at all and, I’m pruriently inquisitive enough to wonder if his crime was that he interfered with a one year old or had consensual sex with 15 year old in the ‘wrong’ state. No puns intended.

  28. Alright let’s say the law is changed, so that there is an exception for those under 18 to produce these movies. Sounds good right? Teen agers deserve the same rights as adults to film themselves. Wrong, what this would do is provide a loop hole for the porn industry to get access to underage films. I manage a smut shop and I have meet some people in the industry that are downright sleazy enough to take advantage of any such law (i.e. max hardcore). The mind of a teenager is nowhere nearly developed enough to make a life changing decision like this. Yes being in a porno is life changing, if for only the fact you will always know you did it. Personally I would like to see the age raised to 20, but the money side says keep it like it is.

  29. Very good point, Timmeh.  Never ceases to amaze me the varied backgrounds and insights of people on this forum.

    Still… there must be some way of balancing the fact that this was something between two individuals, they didn’t deserve draconian punishment.  Must admit I am stumped by this one.

  30. Some rules in life are just arbitrary. Like is there really a difference between someone that is 20 years and 364 days old and someone that is 21yrs and five minutes old? Yes, one of them can buy beer. It sucks to be on the other side of the line but you have to put the line somewhere. I do however think the punishment should fit the crime, and these kids should have gotten a couple of years probation. I think that would have been enough to tell them “hey dumb ass think next time”.

  31. timmeh- good point, I think things like aniversaries and birthdays don’t really mean anything because nothing’s drastically different, but arbitary divisions are the best we can do when the law has to draw a specific line. I see the punishments of the law ‘part of the deal’ when commiting a crime

  32. Proximity to the line would be a good mitigating factor in punishment – to smooth out the arbitrariness of the law.  But mandatory sentencing laws (such as a certain bloviating Foxoid advocates) make that impossible.

  33. Agreed, i think it’s be interesting if a component of a sentance was algebraeicly calculated (considering age), applied differently algebra would also be a useful alternative to tax banding, so it varies to the penny and might be simpler, and consequently less open to loopholes, if used for tax the same equation could apply to everyone, making it seem a little fairer and more flexible

  34. algebraically calculated sliding penalties factoring in age and other quantifiable mitigating variables – I like it.  A zero line escalating to maximum at some point along the continuum. 

    Think we’ll ever have legislators that numerate?  Or an electorate that could follow the idea?

  35. The solution is simple: Start letting the judges do their jobs once again and “judge” the people involved appropriately. There was a time when judges had a lot of leeway to take into consideration extenuating circumstances such as intent and other mitigating factors. Then we had all the zero-tolerance bullshit crop up in the late 80’s and early 90’s that tied judge’s hands to the point that they have no choice in what verdicts they hand down.

    Laws are always going to be somewhat arbitrary which is why we have judges in the first place.

  36. In an odd way I think what I am about to writeis in support of what Timmeh said about the ‘Sleazy people’ in the adult industry.  Surely the age for sex and the age for Porn should be the same. Why can a 16 year old get laid, but not look at pictures of naked women?

  37. DoF: Think we’ll ever have legislators that numerate?  Or an electorate that could follow the idea?

    Good point – not now, but I’d like to see maths skill become part of the requirements to be a legislator, maybe integrated into their degrees (if only because they handle our money, and problem solving won’t hurt).

    I’d like it if there were a general exam of sorts that, whilst offered to anyone, has to be passed in order to allow voting, so control of democracy is in logical hands and more likely to take a wise direction, and if anything might encourage more people to study. I think though the random aimlessness of democracy (that happens when people don’t really know what they’re voting for) is partly it’s strength – as groups keep each other in check, and ineptitude being preferable to more sinister motives, however the stupid are a danger in that they can be encouraged to vote for something sinister

  38. I’d like it if there were a general exam of sorts that, whilst offered to anyone, has to be passed in order to allow voting,

    Hoo boy – actually not a bad idea, some kind of nonpartisan cognitive requirement for voting such as the ability to show reading comprehension and do basic math.  But (puts on helmet) here come the cries of “***ism!”  At least, that has been the result every time I’ve suggested it.

    So we have hoards of voters who don’t know, well, anything really, except what they hear in campaign adsraspberry

    (*** = race, elite, class, regional, etc.)

  39. Hoo boy – actually not a bad idea, some kind of nonpartisan cognitive requirement for voting such as the ability to show reading comprehension and do basic math.

      I’ve thought that for a long time.  I really like the idea, because it makes sense.  I’m more than a little surprised to see it mentioned here.  I’m surprised because of the disparate impact it would have upon the voting blocs towards candidates with conservative tendencies. It would virtually assure that Florida, Ohio, Missouri and New Mexico would break towards conservative candidates for the foreseeable future.

  40. I think negative campaining, like DoF linked to an article about, works because in the face of cynicism it’s more believable about the party, or it plays on the vulnerabilities of the voter, even if it is made up. When I see subjective opinions such as “only faggots want higher taxes” I actually lose respect for the campaigner, sure they might win over people vulnerable to bias on that line of thought but they are showing their only interest is in getting elected, which in turn means their principles are only for show. Also promoting phobeas is the essence of the asshat

  41. I’d like it if there were a general exam of sorts that, whilst offered to anyone, has to be passed in order to allow voting

    I can’t agree with that. I would rather Have every one that intends to vote attend classes. Each party could get an amount of time to educate the voters of their point of view based on their percent of the voter population.

  42. What you would have with tests to prove worth, is a timocracy not a democracy.

  43. If political points were made in the teaching (or exam) there would always be questions of bias and the competancy (and hence level of coverage) of the campaigner. Basing it on other subjects like maths and comprehension is a way of measuring general intelligence which by trend tends to correlate with the thought that went into the choice. There needs to be some assessment of sorts to see if it actually went in, but coursework can be faked. Exams, though an unnatural scenario not replicated in everyday life, are very effective at separating people with less cheating, they’re not necessarily a perfect indication but nethertheless the competancy of those allowed to vote would be higher after the filtering. You could have exemptions for those with qualifications, say perhaps, that those with the equivilent of a degree can vote anyway

  44. Consi – I wouldn’t be too sure about that demographic shift.  One thing about a voting literacy/numeracy test is it would sure as hell get both parties interested in adult education.  Overnight it would become a new national priority.

    Of course, there is one test I would support for voting right off the bat! 

    Timmeh – wouldn’t it be a meritocracy?  I thought a timocracy was about land ownership.  (Good choice on a name, though.  You could approach the voting officials and say; “There are some who would call me… Tim”)

  45. One thing about a voting literacy/numeracy test is it would sure as hell get both parties interested in adult education.  Overnight it would become a new national priority.

    Why isn’t it a national priority already?

  46. I know I just used timocracry as a pun. My name is Tim, and timocracy translates to rule by the worthy. I do understand that I took liberties using that term.

  47. “a national priority already”… politicians talk about education when they’re gunning for the NEA vote.  In practice they mostly go for ill-conceived programs that sound good in slogans without getting in the way of various lobbies. 

    My name is Tim, and timocracy translates to rule by the worthy.

    Timocracy it is then!!!  cool smile

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