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Court Overreacts to Child Pornography Case

Everyone is opposed to child pornography so there’s never much of a public outcry when a violator receives a harsh sentence. However, is there ever a case where a punishment is too severe or even unwarranted? Consider the recent case of the teenage girl named C.S.

child pornography caseThe child pornography in question is a sex video of two consenting teens, a 16-year-old girl and a 17-year-old boy. The boy kept the video on his phone for a year. During that year, the boy posted the video onto the Internet, which his former lover complained about to the police. Soon after, the boy sent the video to C.S., who then posted the video onto Facebook. C.S.’s attorney claims the only motive for posting the video onto Facebook was to harass the girl in the video.

In 2012, C.S. was prosecuted by Pennsylvania’s District Attorney on child pornography charges. Judge Robert Steinberg dismissed the case. Judge Steinberg agreed with C.S.’s attorney that child pornography laws were meant to protect children from sexual abuse, not to punish teens for their lack of foresight. The trial judge also believed that the law violated the Constitution by depriving “a teenager of ordinary intelligence ‘fair notice’ of what is prohibited.” The Pennsylvania Supreme Court reversed, holding that Judge Steinberg had overstepped his authority by using an argument not presented to him by one of the attorneys.

Why This Case Is Ridiculous on at Least Three Levels

First, it is not “child” pornography if the “children” engaging in sex in the video are 16 and 71 years old. Given that Pennsylvania’s age of consent is 17, the teens in the video were legal consenting adults.

The latter, if successful, would require that C.S. be placed on the sex offender registration, a punishment which would be disproportionate to the crime. I’m not suggesting that C.S. shouldn’t be punished or that the girl in the video deserved to have that video of herself posted online. However, C.S.’s attorney was correct in saying that the appropriate charge should be harassment, not child pornography.

Second, the DA’s decision to prosecute C.S., but not the 17-year-old boy who gave her the video, is sexist. The boy had the video in his phone for about a year. If the DA was serious about possession of child pornography, it should have launched an investigation against the boy as well. Accusing C.S. of distributing child pornography also seems like a double standard if the boy also posted the video online. Even if the DA did not intend to engage in gender discrimination, prosecuting one gender but not the other gender for the same crimes in the same case leaves a bad impression.

Of course, this entire situation could have been avoided if C.S. had refrained from posting a sex video on the Internet. Did she have a free speech right to post sex videos of other people online? To be clear, free speech does not protect people from posting child pornography online. However, pornography depicting adults is a gray area. The Supreme Court has long permitted laws which ban “obscenity.”

The problem is that courts have been unable to come up with a definition for “obscenity.” Simply outlawing depictions of nudity or sex is not possible because scientists and doctors need to discuss and distribute papers or videos about sex to treat certain conditions. Even worse, the porn industry has actually succeeded in outsmarting judges on a few occasions. When the Supreme Court ruled that videos were obscene because they lacked any social value, some pornography studios had the participants read medical or legal journals while they engaged in sex.

In this case, civil law might be a better solution than criminal law. The girl in the video can still sue C.S. for harassment. C.S. is also in violation of Facebook’s policy not to post sexual content. Breach of contract with Facebook is a minor offense compared to a criminal trial for child pornography, but restricting one girl’s ability to access Facebook is better than twisting child pornography law to punish someone who didn’t commit that specific crime.

Can a City Criminalize Homelessness?

Cities often pass ordinances that discourage homelessness by criminalizing activities such as panhandling and sleeping outside. Recently, the City of Palo Alto, California even passed an ordinance that will make it a crime to sleep in a car. Punishments for using a car as a “dwelling place” could include a $1,000 fine, a year in jail, or both.

homeless sleeping outsideAccording to the San Jose Mercury News, Palo Alto’s city council passed the ordinance in response to complaints about homeless people’s behavior. Palo Alto criminalized the act of sleeping in a car so the police will have a tool when responding to complaints.

This ordinance in Palo Alto seems unjustifiably harsh. How could it possibly be a crime to sleep in your own car? The Ninth Circuit Court of Appeals is currently in the process of deciding whether a similar law in Los Angeles violates the Constitution. Constitutional challenges to these types of ordinances include:

  • The Eighth Amendment’s prohibition of the cruel and unusual punishment
  • The Constitutional right to travel from the Fourteenth Amendment’s Privileges and Immunities Clause

Cruel and Unusual Punishment

The protection from cruel and unusual punishment has been applied to similar cases to protect the homeless. For example, Los Angeles previously passed a law prohibiting sleeping, lying, and sitting on sidewalks. The ACLU brought an action against the city for arresting homeless people from sleeping on the streets. The Court of Appeals determined that the law was unconstitutional because those arrested were involuntarily homeless and had no other choice than to sleep on the streets.

The Right to Travel

The other primary constitutional challenge to sleeping ordinances is the constitutional right to travel. If an ordinance criminalizes sleeping on streets or in cars, then the homeless are forced to either move on or risk being cited or arrested. Since sleeping is a vital necessity, this discourages migration and puts a burden on the person’s right to travel.

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Top Holiday Crimes

December ushers in the cold weather, shorter days, and that good ol’ holiday cheer. I personally enjoy the hustle and bustle of holiday preparations, but I can also understand why some people get leery about it. The overall increase in consumer activities sometimes gets frantic, especially when it comes to the joyous merriment of elbow-to-elbow shopping and skirmishes for parking spots.

Top Holiday CrimesAlong with this increase in consumerism comes another phenomenon: holiday crimes. It seems like every year, criminals invent new ways of taking advantage of unsuspecting victims in order to get at their holiday loot.

Of particular concern this year is the sudden increase in what are called “porch thefts.” Many counties are reporting alarming increases in porch thefts, even in neighborhood communities that are generally considered as safe. Many people do their shopping online, and get their gifts shipped directly to their door. Porch thieves operate by intercepting the package before the recipient can get a hold of it. They do this by literally walking up to people’s porches and stuffing the packages into bags. While mail theft is a federal offense, this new breed of holiday bandit doesn’t seem to care.

Besides porch thefts, some other types of holiday crimes to watch out for include:

  • Car Break-Ins: Don’t leave your presents and gifts in your car! Thieves are targeting parked cars and breaking into them in search of gifts. Not even your locked trunk is safe. On a similar note, the classic neighborhood home break-in à la Home Alone is always a threat during December and January.
  • DUI’s and Alcohol-Related Incidents: Along with the holiday cheer comes, well, holiday beer. This results in increases in DUI cases and public drunkenness charges, as well as alcohol-related domestic violence incidents. Some counties can rack up several hundreds of cases in a single holiday weekend due to DUI crackdowns.
  • Fraud and Scams: Consumers as well as business owners should beware of the “12 Scams of Christmas”, especially those which use newer mobile apps to perpetrate identity theft.
  • Retail Crime: Store owners and business operators should be watchful for shoplifters, especially during times when the store floors are crowded.

You can help prevent holiday crimes in your area by taking a few measures:

  1. Install security cameras: Having a visible, active security camera on your porch can do a lot to deter the new wave of porch thieves.
  2. Don’t leave your valuables in your car or in exposed areas.
  3. Only order from secure websites and don’t divulge your information to suspicious parties.

Many holiday crimes can be prevented simply by being mindful of your purchases and belongings. Be sure to report any suspicious activity to the authorities, and consult with a lawyer if you have any legal issues or concerns.

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Judge Strikes Part of Utah’s Polygamy Ban

Never underestimate the cultural influence of reality TV. The popular show “Sister Wives,” for example, recently led to a significant change in the polygamy laws of Utah.

Sister Wives is about a man, Kody Brown, his four wives, and his 17 children. The Brown family are fundamentalist Mormons who claim polygamy is part of their religion, although the Church of Latter Day Saints formally disavows polygamy today.

Sister Wives Polygamy LawThe marital status between the four women and Brown is a little more complicated than it appears at first. Brown only has a marital license with his first wife, Meri. Brown has a common law marriage with Christine and Robyn, both of whom he has been “married” to for 16 years. Brown and his latest wife, Janelle, recently held a marriage ceremony together, but Brown does not hold a marital license with Janelle. Janelle has two children from a prior marriage.

Brown challenged Utah’s polygamy ban in 2011, shortly after “Sister Wives” began broadcasting on the airwaves. Utah, like most states, prohibits individuals from holding more than one marriage license or holding a marital license with more than one person. However, due to the state’s history, Utah goes further than most states by criminalizing “cohabitation” with a person or persons which resembles a marital relationship.

Judge Waddoups, the trial judge presiding over the case and a George Bush appointee, ruled that the cohabitation clause was unconstitutional. Specifically, the judge held that the cohabitation law violated free exercise of religion and invaded the privacy and liberty rights of the Brown family. However, Judge Waddoups left the other half of Utah’s polygamy law untouched. Although it is now legal to live in Utah with a mistress as a spouse, the state won’t recognize more than one spouse.

Should polygamy be recognized by the state if all parties consent to the relationship(s)? Although proponents of same-sex marriage will deny this case has anything to do with their movement, Judge Waddoup’s 91-page decision is a product of the homosexual rights movement. Indeed, Browns’ attorney relied on the Supreme Court case which struck down homosexual sodomy laws when arguing that the cohabitation law should be overturned. Judge Waddoups compared polygamy to “an unmarried man who chooses to have intimate relationships with three women.” Although the state would not sanction the unmarried man’s relationships, the state would not punish the man, or the women, for engaging in such relations.

This is an argument for decriminalizing polygamous lifestyles, but it still is not an argument for recognizing polygamy. State recognition of polygamy will not happen, although social conservatives are still wrong to argue that ‘traditional’ marriage or protection of children is the reason. Unlike same-sex marriage, marriage with multiple partners would require complete renovation of our legal system, especially if polygamous marriages could be recognized as common law marriages. It is easy to replace the word “husband” or “wife” with “spouse.”

For polygamous relations to be recognized by the state, federal tax law, estate law, and spousal communication privileges would all have to change to make room for multiple person marriages. Completely re-engineering our legal system to accommodate polygamy would be challenging, to say the least.

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But That Rape Occurred 40 Years Ago!

Roy Harper, a popular folk singer who performed with Pink Floyd, has been accused of multiple counts of statutory rape and indecent assault involving a 12-year-old girl and two girls under 14. His defense against these charges: “But those events occurred 40 years ago!”Roy-Harper

Statutes of limitations (SOLs) are an important part of our legal system. Thanks to SOLs, you can’t be punished for a crime after a certain amount of time has passed. In effect, SOLs are a type of affirmative defense: “Yes I committed the crime, but the incident happened half a lifetime ago!”

As useful as SOLs are, they do not cover every type of crime or personal injury case. In particular, murder is not protected by a statute of limitations. Defendants cannot answer a murder charge with, “But I killed her 40 years ago!” That would be a ridiculous defense because murder is the most severe crime possible and the defendant could still pose a danger to society.

If SOLs are laughable in murder cases, why do they exist in rape cases? California, for instance, maintains a 10 year SOL for rape (with certain exceptions). In other words, if you commit rape in California and aren’t caught for 10 years, then you are forever free from the possibility of criminal charges.

Although Roy Harper has been charged in an English court, the case still raises interesting questions for Americans. For example, just last month, the governor of California vetoed a bill which would have extended the statute of limitations for victims of child molestation in civil cases.

Since rape is a crime about power, it is not uncommon for rape victims to not come forward until years after the crime is over. Rapists often tell their victims that no one will believe them even if they do come forward. Particularly in child molestation cases, the victim will believe the rapist. After all, the rapist is often a priest, coach, or respected member of society. Who would believe a little child over Jerry Sandusky or, possibly, Roy Harper?

Given that the claim, “But that occurred 40 years ago!” is an irrelevant defense in a murder case, I propose that the same logic should apply to rape cases. Perpetrators of rape should be held accountable for their actions despite the passage of time.

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