The New York Times has an interesting twist on the Weiner scandal: one of the women, Gennette Cordova, stated that she was sent the infamous underwear pictures without any invitation or prior sex talk with Weiner. That raises the question of whether a charge could be investigated for a type of virtual flashing or other offense. I will discussing this issues tonight with CNN’s Eliot Spitzer.
Gennette Cordova told the Times that she had only engaged Weiner on political issues when she suddenly received the underwear shot. She dismissed it until it was revealed that Weiner was sending women of such pictures.
She suggests, as stated by other women, that Weiner tried to convert the conversation to sexual discourse.
Previously, the only allegation that raised any criminal concerns was the allegation by one woman that Weiner encouraged her to lie. Since he knew that a federal investigation was being demanded by many, it could be viewed as an effort of obstruction or even suborning perjury. The Justice Department has gone after such pre-indictment acts in prior cases — though these cases are often problematic.
The question is whether the recently revealed picture of Weiner’s erect penis was sent to women without their encouragement or approval. If Weiner had exposes himself to these women, it would have been a criminal act of exposure. This would be a virtual such act. We recently saw criminal charges against brought against a senatorial candidate for allegedly exposing a woman in a college computer room to pornographic images.
The photo meets the Supreme Court’s definition of obscenity under Miller v. California, which includes “lewd exhibition of the genitals.”
Some have suggested the communications may run afoul of 18 U.S.C. §2257. The law states “[s]exually explicit conduct has the meaning set forth in 18 U.S.C. §2256(2)(A),” and that statute defines the term to mean “actual or simulated … (v) lascivious exhibition of the genitals or pubic area of any person.” Once again, if there is implied or express consent, serious constitutional issues would attend a prosecution. Distribution of obscene matter, including for personal use, is a felony under federal law, 18 U.S.C. Sec. 1465. That provision states in pertinent part:
Whoever knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2)  of the Communications Act of 1934) in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.
However, this was not done for commercial gain. Again the use with consenting adults would raise free speech issues. Absent the involvement of a minor, a criminal charge would be hard to base on these facts.
There is also the question of sexual harassment — an issue that Weiner has campaigned against. However, he was not using his position or any employment to coerce or harass these women and most appear to have willingly engaged him in these suggestive dialogues.
The most recent picture, however, crosses the line into a picture that would be viewed as obscene. Clearly, consenting adults can send obscene pictures to each other and Weiner cannot be liable for recipients sending of such pictures by third parties. However, if he sent this picture to people without their consent, there could be serious legal questions raised by the conduct. Most federal prosecutions focus on child pornography but there remains a question under state law. If the pictures do not involve either the depiction or participation of a minor, prosecutions like that in South Carolina are rare and problematic.
Source: NY Times