So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime.
What didn't get addressed, though, is that that video has also been distributed to almost everybody in the school, without her consent. That means that nearly everybody in that school has distributed child porn. And they are only perpetrators and not victims. Only punishing the one perpetrator who is simultaneously the victim of the crime, is extremely arbitrary and backwards.
At the very least be consistent and punish everybody who distributed that video.
> So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime.
Yes, and this is due to the fact that possession or transmission of underage pornography is a "strict liability" crime. There is no mitigating factor allowed.
The issue is that your enemies are active, malicious, and clever. No matter what loophole you allow, they will exploit it. So, you close all the loopholes.
And then you wind up with these kinds of pathological situations.
> At the very least be consistent and punish everybody who distributed that video.
These kinds of cases invariably are driven by publicity more than justice--this is the problem with prosecutorial discretion. Normally, they get swept under the rug, but if it hits the media, someone is going to get scapegoated.
If only the justice system worked in a completely logical way..
But yeah, I don't really follow the reasoning behind this at all. To me it seems like the girl didn't commit a crime (She shared it out of her own volition), but the first person to spread the video _did_ commit a crime.
Otherwise, would 'revenge porn' always be the girls fault for sharing the video first, instead of the ex-boyfriend whom shared it?
I don't understand what public "good" this is trying to accomplish (who's the victim?); it seems like the victim was victimized twice: once by revenge porn and then again with an unjust, unconcerned, over-prosecuting legal system that incarcerates more people per capita than all other countries except Seychelles.
A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal.
Morally speaking, it all boils down to protecting the form of expression. Probably, when the laws were written, there was the idea the sex for money is abhorrent, but freedom of speech needed to be respected. In fact, the core difference of prostitution and porn is that in the former, clients definitely don't want to be filmed, so it kinda makes (I'm not implying that I agree or not).
> A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal.
People like to say that, but it really isn't true.
A very few, very localized areas have specific legal jurisprudence surrounding the production of pornography. Everywhere else, you're probably going to get arrested. And, if the prosecutor decides to try you, you are almost certainly getting jailed. And while you will probably eventually win your appeal, you get the privilege of fighting your appeal from jail in the meantime.
So, while producing pornography may technically be legal everywhere in the US, practically it is only legal in areas that have specific jurisprudence declaring it so.
Out of curiosity: is not this banned in order to prevent people from watching it and then repeating with someone else?
In that case the victim is every underage person.
The ruling is dangerous on several levels: It mangles a law designed to protect minors by putting them in greater risk of legal jeopardy than adults. It clashes with fundamental principles of due process, punishing the ostensible victim of a crime as a perpetrator as well. And it essentially encourages revenge porn against minors, who cannot attempt to halt the distribution of their own intimate images without risking prosecution. Wednesday’s decision is a disastrous blow to the rights and safety of minors in Maryland.
Sounds like Caballero was in possession of child porn and watched it. Why was he not charged when he reported it to the police? He should be doing like what 5 years, and be put on a sex offender registry, lose his job, his life... etc. Probably commit suicide at some point.
Honestly the sex laws in the United States are insane and the only ones who don't see the insanity are its puritan purveyors who are probably sexual deviants in the closet...
And no one says anything because they are scared of not thinking of the children (tm). It comical to point out the hypocrisy of that rhetoric in this way. Like seriously think of the f*ing children.
Interesting. She shared the video with her friends, one of whom she fell out with. That friend then reported the video to the school resource officer, Caballero. The girl then met Caballero and thought he was going to help her. Instead, he set up the whole prosecution.
It's interesting to see the result. If any school officer ever thinks any student is going to be honest with them ever again, they're an idiot. You get less of what you punish, and the proximate thing is talking to your school resource officer.
I don't think the school officer has any meaningful choice in this situation. He is suddenly in possession of CP the only real option for him is to go the police.
Pornography and sex are different things, with different laws regulating them. Videos of children (i.e anyone under 18) having sex are illegal in the vast majority of countries, irrespective of the age of consent.
A sign of how times have changed from the crazy world of puritanism (when oral intercourse could be considered illegal) - you assume it is the clip that is legal. They're talking about the oral sex when they're referring to legality.
It is, of course, obvious that distributing a video of a legal act can be illegal. For instance, there's the obvious thing that a 14 year old is legally allowed to masturbate. They are not then allowed to video themselves masturbating and then distribute the video.
Does a 14 year old truly understand the gravity of the acts of filming and distribution here? I would argue against, and for that reason I find it hard to understand how courts could agree to the punishment when the agent of the crime is so obviously incompetent.
No, doing and distributing a video of it are completely different things. There's nothing wrong with children being naked to take a shower, for example, but distributing a video of naked children showering is completely different territory.
I'd argue that intend and who it's shared with that matters a lot. A nudist family's holiday pictures might be harmless when it stays in the family, but turn into child porn when it ends up on sex sites.
In general, I'd say that distributing any sex act involving someone else, without the consent of that other person, who needs to be adult enough to be able to give that consent, should be illegal.
In the United States, there's no defense to possessing child pornography. It's a "strict liability" crime.
So if weren't possible to prosecute a minor for creating child pornography, he or she could photograph himself/herself nude, send the photo to the entire staff of a school (for example), then call the Police and have them all arrested -- all while not being liable for a crime.
As long as there's strict liability, creators of child pornography at any age, need to be held responsible.
Isn’t there a defense if it’s planted? Or an out for content publishers? (e.g. I’m sure people have put encrypted or even cleartext CP on Amazon S3, yet S3 isn’t being shut-down by the feds).
I don't know about your specific laws (which are different at all levels of policing, and therefore different between states, countries, nations, etc.), but where I live, we have the concept of intent built into our criminal code. Mens Rea is a term I've heard used for it in some areas.
That is to say, possession of something isn't criminal if you didn't intend on having it. If you kept it, that changes the intent of course. But you can delete it. Or report it. If you've done that, you're not criminally liable to it. There are some crimes you must report, but we're talking specifically about the possession aspect.
In that sense, if the image was found in your cell phone trash directory, but also clear that it wasn't solicited and it wasn't kept, then there was no illegal intent. You won't go to jail for being an unwitting recipient. It is a rather backward state that would jail someone in this situation.
If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested? Questioned, sure but arrested?
If I find drugs in the mail and turn them over to police, am I going to get arrested (assuming this was not a controlled delivery, I just received them randomly)?
Both are crimes where possession alone is cause for arrest.
> If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested?
Quite possibly arrested. However, a successful prosecution probably depends on the definition of "possession"--I suspect a competent defense attorney could argue that you really didn't take possession if you immediately reported it to the police and deleted it.
> Both are crimes where possession alone is cause for arrest.
Possession of drugs is not a "strict liability" crime.
Can you provide a citation for drugs not being strict liability? In any jurisdiction where the drug is not legal, mere possession is cause for arrest.
> Criminal law classifies strict liability as one of five possible mentes reae (mental states) that a defendant may have in pursuit of the crime. The other four are "acting knowingly," "acting purposely," "acting with recklessness," and "acting with negligence." The mens rea of strict liability typically results in more lenient punishments than the other four mentes reae. Typically in criminal law, the defendant's awareness of what he is doing would not negate a strict liability mens rea (for example, being in possession of drugs will typically result in criminal liability, regardless of whether the defendant knows that he is in possession of the drugs). [0]
> Can you provide a citation for drugs not being strict liability? In any jurisdiction where the drug is not legal, mere possession is cause for arrest.
Strict liability isn't about whether they can arrest you, it's about what they have to prove to convict you.
DUI/DWI, for example, is pretty universally strict liability, though. This leads to the occasional bizarre case where someone sleeping it off in their car gets charged and convicted for a DUI even though they weren't driving but were simply behind the wheel.
Off the top of my head I can't cite chapter and verse. The possession of drugs will almost certainly result in an arrest everywhere. However, most states where I have had contact with the legal system about this, good defense lawyers have lots of maneuvering room, and the court allows lots of mitigating circumstances (if they really aren't yours generally you have enough corroboration to limit the problem).
Possession of child pornography gets no such latitude.
Honestly, with all the weird stories about how law enforcement in the US works, it wouldn't surprise me at all if it turns out that reporting a crime exposes you to prosecution.
People like to blame judges but often judges are simply applying legislation in an impartial manner, as they are required to do, and if they don't do that, the system falls apart.
The solution is for the legislatures to modify the law, if they want to.
Did this person distribute child pornography, as defined by the law, to others? Yes. Were the others minors as well? Yes.
> "[T]he language of CR § 11-207 in its plain meaning
is all-encompassing. The General Assembly has not updated the statute’s language since the advent of sexting and thus we may not read into the statute an exception for minors."
Those are the judge's words, they are correct, and they explain why he had to rule this way.
We have judges and juries in part so that human judgement still comes into play. Courts were never intended to be administers of abstract algorithms and actual justice be damned.
Judges are there to determine if someone has violated the law. When judges go off that, as some sometimes do, they are a law unto themselves. Such judges allow the rich and elite to corrupt the system by purchasing judgments, something not available to the non-elite. The judge made clear in the decision he was applying the law as written and there's a strong undertone that he doesn't agree at all with the judgment he had to give as it was not just. He also explains explicitly that it's the legislature that is responsible and enumerates precisely why and what a solution would be should anyone desire it.
Juries, on the other hand, are not trained in the law and are perfectly capable of engaging in nullification in the interests of justice. Honorable and responsible judges should not and are not supposed to engage in nullification because the risks of corruption are too extreme.
Hotten found the text to be unclear. And under the court’s own precedent, “[w]hen a statute can be interpreted in more than one way, the job of this Court is to resolve that ambiguity in light of the legislative intent.” Here, Hotten found ample evidence that Maryland “sought to protect children from exploitation and abuse as opposed to enacting laws that criminalized consensual sexual activity among minors.”
Under this rule, ambiguous criminal statutes must be interpreted in the defendant’s favor.
But there's all too often some bullshit justification as to why it's someone else's job to make sure justice gets served and these particular people in authority were "just doing their job."
The emperor in Mulan and the sultan in Aladdin taking it upon themselves to actually exercise their authority to do the right thing are, sadly, not how real people typically operate.
What didn't get addressed, though, is that that video has also been distributed to almost everybody in the school, without her consent. That means that nearly everybody in that school has distributed child porn. And they are only perpetrators and not victims. Only punishing the one perpetrator who is simultaneously the victim of the crime, is extremely arbitrary and backwards.
At the very least be consistent and punish everybody who distributed that video.