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?