
A teen shared a video of her own legal sex act, convicted as child pornographer - laurex
https://slate.com/technology/2019/08/maryland-sk-court-case-teen-sexting-child-pornography.html
======
mcv
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.

~~~
Insanity
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?

~~~
bsder
> To me it seems like the girl didn't commit a crime (She shared it out of her
> own volition)

While _consensual sex_ may be legal at 16 in Maryland, I suspect that _video
pornography_ is not. Making the video probably was illegal prima facie.

~~~
usrlocaletc
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.

~~~
pizza234
> 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.

From a legal perspective, the distinction is considerably more detailed than
just camera or not. This is a brief article:
[https://vistacriminallaw.com/pornography-vs-prostitution-
in-...](https://vistacriminallaw.com/pornography-vs-prostitution-in-
california)

I knew a longer article, but I can't find it.

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).

------
DoreenMichele
This is awful on so many levels.

 _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._

------
devoply
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.

~~~
zzzcpan
Fighting child porn is about power, not actually fighting child abuse. Hence
everything surrounding it is ridiculous, unfair and dishonest.

------
scarejunba
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.

~~~
rthrowayay
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.

------
mirimir
> The clip depicted S.K. performing oral sex on an unknown man—a legal
> activity in Maryland, where the age of consent is 16.

So how can it be child porn, if it was legal?

Edit: OK, so the laws need to change, so that whatever's legal to do is legal
to distribute, and _vice versa_. Otherwise, there's too much injustice.

~~~
scarejunba
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.

~~~
vageli
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.

------
fortran77
There's really no choice.

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.

~~~
vageli
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.

~~~
bsder
> 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.

~~~
vageli
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]

[0]:
[https://www.law.cornell.edu/wex/strict_liability](https://www.law.cornell.edu/wex/strict_liability)

~~~
bsder
> 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.

And, actually, I suspect that is a bad example and that a lot of drug laws are
_NOT_ strict liability. See:
[https://law.marquette.edu/facultyblog/2011/07/floridas-%E2%8...](https://law.marquette.edu/facultyblog/2011/07/floridas-%E2%80%9Cstrict-
liability%E2%80%9D-drug-law-found-unconstitutional/))

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.

------
droithomme
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 judgment followed the law, and it's clear from the specific wording of the
judgment
[https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf](https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf)
that the judge is fully aware of all the issues.

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.

~~~
DoreenMichele
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.

~~~
droithomme
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.

~~~
DoreenMichele
Two excerpts from the article:

 _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.

