Virtual Flasher? Can Weiner Be Charged With Federal Violations In Tweets

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) [1] 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

28 thoughts on “Virtual Flasher? Can Weiner Be Charged With Federal Violations In Tweets”

  1. Perverts may not be charged for distributing vile photos or words by the Federal government.

    But the states may.

  2. Ms. EM,

    Well then, he unfortunately hit the infamous trifecta…

    And I agree with you.

  3. Holy sufferin’ jahosefat’s mother of cow! I can hear women worldwide in every known language from Mandarin, Swahili, to Pig Latin exclaiming to their husbands and/or lovers about how well-endowed their men are after viewing the physically under-endowed U.S House Representative.

    The song that will likely enter their minds after the photo viewing will be:

  4. I think the point of the article is that it is illegal to expose one’s genitals to another person without their prior consent, and given the current state of photography, in the spirit of that law Anthony Weiner did exactly that. There is no essential difference between the in-person sight of Anthony Weiner’s genitals and the photographic sight of same.

    Just as there is no essential difference in seeing a person naked on TV (or on the computer screen) and seeing them naked in person; that is why it is an invasion of privacy for a hidden camera in a dressing room to relay images of the women there to a pervert in the store office. That is why the T-Ray scanners in the airports are causing such resentment; they show the passenger as naked.

    One might claim that the immediacy of a person’s physical presence might change the dynamic, but the law doesn’t mention that at all, the law is about the image or sight of the genitals, not the fear of what a flasher might do.

  5. One has to wonder in this particular case how much of the media and political hue and cry is simple penis envy. 🙂

    Professor, let me get this straight: you’re going to be interviewed tonight on CNN by *Eliot Spitzer* regarding the shady sex habits of an elected official? I’ll tune in just to see if the irony crushes you both (I’d demand a titanium shark cage thing-y as protection during the interview were I you) and/or if one or both of you just can’t keep a straight face for the duration. 🙂

  6. Personally, I think JT should spice up his tweets a tad! How’s he look in bloomers?


  7. Buddha:

    I think my wife believes the photograph is a graphic statement of the adage that all men are dogs.

  8. I just figured it was a prop oriented double entendre by a married man on the make, Mike.

  9. Everything can be misconstrued. For example, the photograph at the top of this story contains an ambiguity. Is the poster with the word “me” and a vertical arrow referring to the person holding the poster or to the dog in the photograph in the background?

  10. FYI: the link from Mark Kernes is to an article on the Adult Video News website. When I read it, there was nothing on the page except for the AVN logo and the article itself. What I saw was (by this reasonable person’s opinion) entirely safe for work. I could say, I knew it when I didn’t see it.

    I assume that many corporate IT systems will block access to this site, and if they don’t, you might have some ‘splainin to do if there are records kept of your office web browsing.

    The point to the article seems to be to point out problems in the federal law that creates (sometimes absurd?) record keeping barriers to the production and distribution of “pornography.”

  11. As long as whatever standard that is applied to Rep. Weiner is applied to other members of the Federal Legislature, then, fine, set the bar almost anywhere they want.

    But…. Given the fact that many (most?) members have their toes pretty deep into de facto bribery, they had better think very carefully about how picky they want to be in punishing a member for doing something illegal, or using official equipment for doing something “unbecoming” a member.

    Here in Illinois, we are trying our former governor for seeking to trade and official act for either explicit personal gain and/or for campaign contributions/material support. It’s obvious that this sort of thing goes on constantly in the Capitol building and their offices out in DC.

    But, of course, this is special! This is a sex scandal. (and on top of that, this is a Democrat having a sex scandal. When “family” and “Christian” “values” Republicans have such scandals, they sail on like nothing happened. Isn’t that the case Senator Vitter?) We must be punitive in direct proportion to how titillated we are! And let the corruption and official mis-conduct slide….

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