The Illinois Supreme Court handed down an interesting decision on Thursday where it ruled that it was not illegal for an adult man to have sex with a 17-year-old girl but it was illegal to film it. Marshall Hollins, 32, was arrested in March 2009 and charged with three counts of child pornography after photographing himself having sex with his 17-year-old girlfriend. The sex was fine but the photos were the crime.
In Illinois the age of consent for sex in Illinois is 17, but it is illegal to photograph anyone under the age of 18 engaged in a sexual act. That creates an interesting conflict that a person can have the right to consent to sex but not the right to consent to be photographed having sex. In this case, the girl’s mother found the pictures on her daughter’s email. Hollins was already a registered sex offender.
The 5-2 decision rejected the challenge that the child pornography statute is unconstitutional, claiming that applying the law to someone old enough to legally consent to sex does nothing to protect them from exploitation or abuse. In this case, the photos were not sold or distributed beyond the couple.
However, Justice Rita Garman wrote for the majority that “there are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity.” These include the view that
“[m]emorialization of the sexual act makes permanent an intimate encounter that can then be distributed to third parties. These concerns are exacerbated in the modern digital age, where once a picture or video is uploaded to the Internet, it can never be completely erased or eradicated . . . It will always be out there, hanging over the head of the person depicted performing the sexual act.”
The majority, however, made a critical decision in the standard of review — rejecting the claims of protected speech in the act of photographing intimate conduct. The majority applied the rational basis review. This low standard followed a concession by the defense counsel that no fundamental constitutional rights, including first amendment rights, were implicated in the case. A surprising concession. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court struck down a federal law that criminalizing sexually explicit images that appeared to depict minors but were in fact not real minors. The Court found the images protected under the First Amendment. The decision distinguished the ruling in New York v. Ferber, 458 U.S. 747 (1982).
Two justices – Anne Burke and Charles Freeman – dissented, arguing that the Court did not have to accept the concession and that it should have required briefing on the first amendment question. They conclude:
“There was nothing unlawful about the production of the photographs taken by defendant in this case because the sexual conduct between defendant and A.V. was entirely legal. The photographs are therefore not child pornography as defined by the Supreme Court for purposes of the first amendment. And, because the photographs taken by defendant are not child pornography for purposes of the first amendment, we cannot simply presume that rational basis review is appropriate in this case.”
I think that dissent is correct about the concession and that briefing should have been ordered on the first amendment issue. Hollins is not exactly a sympathetic character and, as a parent, I would frankly share the mother’s sense of anger over the relationship and pictures. Moreover, the state can argue that sextexting has become a serious problem among minors. Yet, while I thought the majority had some strong points, there are first amendment concerns raised by the criminalization of photos if they are purely consensual and private. What if the 17-year-old takes the pictures? No one would seriously disagree with the criminalization of taking such photos for commercial purposes or for distribution. The issue of purely private photos however raises a tough question in my mind.
What do you think?
Source: CBS
In most states, you can get an abortion without informing your parent at all at 13 or 14. Usually, you can choose whether to keep your baby or give it up for adoption at around the same age (if a parent is below 13 or 14, which is extremely rare anyway, the minor’s parents can force them to give the baby up for adoption.) The minimum age to get condoms without informing your parents under Obama’s health care law is something like 14 or 15. Yet the US ages of consent are 16-18. I think the idea that a young US teenager is legally allowed to get condoms in order to have sex, is legally allowed to get an abortion without informing their parents if they don’t like the consequences of sex, is allowed to choose to not give their baby up for adoption if they do like the consequences of sex, yet isn’t legally allowed to have sex to be an extremely fascinating legal conundrum. I could sort of see why the child porn age would be higher than the age of consent: porn can be viewed forever and sex only lasts one night, and porn is viewed all the time by a person who you may not have intended to view it. I think there are more people who would regret taking nude pictures of themselves than there are people who would regret having sex.
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Darren Smith 1, June 26, 2012 at 12:38 am
Matt,
I have lived In Washington most my life with a short time (about 6 months) in Europe and have Irish citizenship as well the US.
The man you were referring to digging up crabs, sounds like he doesn’t have his methods down. Usually crab are caught in traps on the bottom of the water. Clams are usually dug up.
Kind of ironic you mention the setting for your encounter there. A decade or so ago there was much anger in WA, especially Western WA, about Californians coming up here and buying up loads of property, driving housing prices up considerably. Then, you saw a WA Ex Pat who moved to California complaining of Oregonians taking our shellfish.
Seems carpetbagging is alive and well in the US of A.
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I’m from eastern Oregon. Told the old guy that after he started complaining about the Oregon people taking their Washington crabs.
There is a similar sex issue ideology conflated with hypertext linking.
I mean the act of sex in this post’s case was legal, but filming it was not.
That notion has a similar legal consideration in ideology about hypertexting.
When the Internet was conceived hypertexting was integral, but in some dark corners of some dark minds it was dirty:
(Wikipedia, Hyperlink). Because the Internet is global, some minds in strange places have a harsh view of free speech and free expression.
These harsh ideologies originate in nations foreign to the U.S. Constitution, and they even equate linking to sexual intrigue (“blogwhore” is applied to HTML hyperlinking).
I suppose, like the strange courts who had the view that links were illegal per se, they see the links as if one was photographing the sex.
In other words links are ok so long as no one uses them I guess.
Matt,
I have lived In Washington most my life with a short time (about 6 months) in Europe and have Irish citizenship as well the US.
The man you were referring to digging up crabs, sounds like he doesn’t have his methods down. Usually crab are caught in traps on the bottom of the water. Clams are usually dug up.
Kind of ironic you mention the setting for your encounter there. A decade or so ago there was much anger in WA, especially Western WA, about Californians coming up here and buying up loads of property, driving housing prices up considerably. Then, you saw a WA Ex Pat who moved to California complaining of Oregonians taking our shellfish.
Seems carpetbagging is alive and well in the US of A.
so it’s perfectly alright for a guy to DO IT with a 17 year old, although the porn industry is shackled (for bondage freaks) with 18 years old minimum. Hmmph. And the crime is the actual capture of digital images of the legal consensual act without any proof of it’s dispersal beyond the participants.
The legal profession just keeps making more business for itself yet I understand that only 50% of current law grads will find work in the near future. Maybe Holder needs clerks for the records destruction unit.
@bettykath: In the distinction between erotic and pornographic, these were erotic pictures; i.e. there did not seem to be any intent to sexually excite anybody but the participants themselves.
I am not sure that distinction really makes a difference, though. If the age of consent to have sex is 16, isn’t the age of consent to have sex in front of other people also 16? If a 16 year old consents to sex at a party for the explicit purpose of sexually exciting other party goers (not for pay) should that be illegal?
(Before I am vilified, I am only talking about the hypothetical ramifications of the law as it stands).
For example, it isn’t a stretch to imagine, at a party, a hard core version of spin the bottle, truth or dare, or perhaps strip poker in which the losers entertain the winners. Wouldn’t a sex show be explicitly pornographic?
My point is that whether something is simply erotic or pornography, I think if it is legal for somebody to do it, it is legal for them to consent to be recorded doing it. I think that if any coherent theory of competent decision making allows them to consent to the act, that same theory has to allow them to make the decision to consent to the recording of the act, regardless of the potentially embarrassing consequences.
These laws are like the laws anon and Frankly envision for any blog, especially during rabid portions of the month which they call “your insight is awaiting immoderation”:
You miners keep on photographing yourselves.
Matt Johnson 1, June 25, 2012 at 1:16 pm
Darren,
It’s crazy everywhere. Are you from Washington? I’m originally from Oregon.
I was at a retirement community in southern California when some old guy from Washington was complaining about the Oregon people coming to the Washington beaches to dig up their crabs.
I said, nobody wants your crabs, you old b——. Then he put up his fists.
After that we ate lunch.
Your comment is awaiting moderation.
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That pass the filter? I’ll try to be a little more correct with my terminology.
Gary T. You bring up a point about minors photographing themselves. I have seen prosecutions here where minors have been arrested for child porn for taking nude photos of themselves and injecting it into the internet. I think it is a stretch but the letter of the law is the letter of the law and some choose to enforce it with absolute means, sometimes regardless of reason.
In our state (WA) it is illegal to telephone or otherwise “Communicate with a Minor for Immoral Purposes” (RCW 9.68a.090) So the seduction of the minor is a crime (if the caller is a registered sex offender or having been previously convicted of a sex offense it is a felony) photgraphing the sex act is illegal (Child Pornography) but the sex is legal if the age is above 16 or the adult is a certain age above the minor. Unless of course the adult is a supervisor in the employment or education of the minor or has a role such as a police officer, judge, doctor, or whatever.
yes, it is that crazy here.
I think there needs to be a differentiation between the erotic and the pornographic. Not all sexual stuff is pornographic.
That’s the intuitive conclusion. I’ll have to get back to you with the rational stuff to further explain. Tony C., want to take it from here? : )
Actually, minors photographing themselves can be held criminally liable in some jurisdictions, if those are distributed, usually through Facebook. Though I think the charge is possession/distribution of child pornography.
“[m]emorialization of the sexual act makes permanent an intimate encounter that can then be distributed to third parties. These concerns are exacerbated in the modern digital age, where once a picture or video is uploaded to the Internet, it can never be completely erased or eradicated . . . It will always be out there, hanging over the head of the person depicted performing the sexual act.”
So would a child, last time I checked… But yet they can consent to sex still and have that child?
I will make two logical points.
1) The age of consent to sex is also the age of consent to single parent pregnancy, which can be life threatening and can certainly be more life altering than some pictures to which one consented with the same reckless disregard for the future.
2) If Mr. Hollins had blogged in explicit and salacious detail about his legal sexual encounter with the 17 year old, naming her with her consent, and using her photograph, wouldn’t that be protected under free speech? Wouldn’t that also be floating around the net, potentially forever?
I find this verdict is appalling as the idea that it is illegal to film police doing their job. I do not see how pictures or films of consensual legal acts can possibly be considered child pornography, a picture of an act is NOT as harmful or dangerous as the act itself, and if the picture is illegal the more harmful act should be illegal, if the act is legal the less harmful picture should be legal, especially if both are executed with legal consent.
So don’t do it in the first place if you can’t film it.
I was in court and this girl (after court) was giving me grief. A younger guy said, you better not get her pregnant, you’ll be in trouble. I said, you’re going to be in trouble anyway.
How about the derivative question, can a minor violate child pornography laws if s/he takes pictures of themself naked, or even some self sex act.
That would be an interesting question. A minor could commit a felony by simply photographing themselves.
Again, something very wrong with this picture, and the inconsistent laws that prosecute it.
Stupid laws, breed stupid decisions. The problem is who among us could be supportive of a concept that “child pornography” is harmless?
This happened in Michigan many years ago and the guy ended doing time.
Difficult. Now those pictures are out there indefinitely, and this *girl* may regret her immature decision down the road. She probably won’t end up with this guy who may keep his own (uncontrollable) copy. Too many uncontrollable variables in this, and I don’t think 17-year-olds should pay for regrettable decisions possibly indefinitely.
There is something in here that is still unresolved….. Can minors still commit a crime of child porn, if between two minors they are sexted……
There is just something wrong with this picture…..