They just caught an alleged child pornographer in Newark, Ohio. The miscreant had taken nude photos of a 15-year-old girl and was sending them to the girl’s friends—also minors—on their cell phones. What really makes this a story, however, is the identity of the individual who was exploiting this poor girl.
Some of you know where this is going, don’t you? The girl took the pictures herself, with her own cell phone, and sent them to a few of her friends.
As a libertarian, I am frustrated and confused by the issue of child pornography. Intellectually, I can make a case that child porn is just pixels on a screen and magnetic codes on a disk. Its mere existance harms no one.
But I don’t ever want to see any child pornography, and it creeps me out that some people do. And while it may technically be against my libertarian principles to prosecute people for mere possession, I don’t get worked up about it.
The real harm of child pornography is in the making of it and in the distribution of the photos in violation of the child’s natural right to keep private things private, all of which gets turned on its head in a case like this.
Orin Kerr mentioned this case at Volokh, and I thought the drift of the comments was pretty good, taking the legal theory behind the prosecution to its limits. For example, if the 15-year-old girl has sex with a 20-year-old partner, can she be charged as an accomplice in the statutory rape? Conspiracy maybe? And what about the kids she sent the pictures to? Could you charge a 14-year-old boy for possessing child pornography featuring a “child” older than he is?
Scott Greenfield wasn’t impressed with this parade of horribles, and he has some really good commentary of his own. We got into a discussion in the comments, and I started to post a response, but it got long, so I’m posting a version of it here instead.
I think we all agree that charging this girl for production of child pornography is, taken by itself, nonsense. For me, it’s rendered incoherent by the basic libertarian tenet of self-ownership: The ultimate moral authority on the welfare of any person is that person. If a woman wants to take high-def video of herself having eight-way donkey sex and post it on the internet, that’s her right, and no one should be allowed to take it away from her.
There is, of course, a mental capacity requirement: People whose intellects are not well-functioning are presumed for their own protection not to be able to make certain kinds of decisions. In particular, children aren’t allowed many of the sexual options available to adults. It’s assumed that they will decide badly, and that they are easily manipulated by adults. But to argue that they can somehow manipulate and exploit themselves is crazy talk. (Not that this prevents judges from accepting that argument.)
So why is this happening?
I’d like to read between the lines and believe that prosecutor Ken Oswalt is trying to do a good thing. I mean, we all seem to think that this girl has some serious self-esteem issues if she’s trying to gain acceptance this way, so I’d like to think that the prosecutor has discovered a problem that the girl’s family is not addressing, and that charging the girl is the only way he can gain enough traction to intervene.
In fact, while I’ve been imagining that this is a normal girl who’s a little mixed up, it’s possible the situation is much worse than we know. For example, maybe she’s a seriously troubled child and the cops have good reason to suspect that one of her “friends” is giving her drugs and pimping her out to perverts. A prosecutor only has one tool in his toolbox. Arresting her might have been the quickest legal path to getting her out of a dangerous situation.
I’d like to believe that. Not about the girl—I hope she’s alright—but about the prosecutor. I’d like to believe that the people who wield such power on our behalf are decent and honorable. I’d like to think that if I knew the whole story, I’d agree that Oswalt is helping the situation.
It’s hard to tell what’s really going on, however, because this is a double-secret prosecution. First, the photos themselves are secret. I’m pretty sure that no one outside the case will ever be allowed to see them because, you know, they’re child pornography. Second, since the alleged perpetrator is a minor, most of the legal proceedings are inaccessible.
I understand the reasons for both of these prohibitions, but it does mean that this is one of the least transparent legal proceedings possible under our system. Who, besides the Gitmo terrorists, will be tried under less public scrutiny?
When I was writing my original comment, I re-read the Newark Advocate article about the arrest, and I noticed something that got me thinking unpleasant thoughts: Nowhere does the article tell us the sex of the kids who received the photos. We’ve all been assuming she sent these pictures to some boys, in a sad attempt to earn their attention and acceptance. But is it possible that this 15-year old girl was just sending photos of herself to her girlfriends?
I remember when I was that age, the girls spent a lot of time talking about their bodies and comparing themselves with their girlfriends. And if they talked about it that much in front of me, I’m sure they were much more talkative and explicit by themselves. They see each other naked all the time in the school locker rooms, so it doesn’t seem like much of a leap to assume they might send a few pictures.
So we all know this girl isn’t really a child pornographer, but maybe she’s not even having self-esteem problems. Maybe she’s just a normal teenage girl who didn’t quite think through the consequences of her actions.
In other words, maybe the prosecutor is an ass.
This theory about her girlfriends is pure speculation on my part. As I said, the secret nature of all this means we’ll never know. The recipients of the images were minors, so their identities may never be revealed. We’re probably not going to learn much about this case.
Nevertheless, three things still bother me.
First, if the prosecutor just wants to help, why hit her with a charge of Possession of Criminal Tools? The tool in question is the cell phone she used to take the pictures. Given that the other charge is Illegal Use of a Minor in Nudity Oriented Material, which sounds a lot more serious, what is he up to? (And just what is included in “nudity oriented“? I suspect it means you can be charged for possessing nude pictures of a minor even if there isn’t any nudity.)
Second, if he really just wanted to help, I’m not convinced that prosecution was necessary. There are state agencies that can take children out of a bad situation, especially since she’s a foster child—there are no parental rights involved.
Third, just before I posted my comment, however, I read prosecutor Ken Oswalt’s own explanation of the charges, and he makes the reasons for his actions quite clear. This part kind of pops out:
Since April of this year I have undertaken to speak at schools around Licking County ranging from middle schools to high schools in an effort to stop this practice. At each presentation I was careful to make it quite clear that I did not wish to have to charge young people with criminal offenses for this behavior, but that if they were nonetheless found to be engaging in this behavior after my presentation at their schools, they would be charged as it was necessary to convey to these young people the urgency of the message I was trying to relay to them.
Perhaps I’m just too cynical, but is he saying he’s charging her because she dissed him? He spins it as “I gave you all a warning first,” and apparently he hasn’t charged a few other students who did things like this before his series of speechs.
On the other hand, he kind of has a good point here:
According to school officials where this girl was enrolled, this girl actually attended my presentation at their school. Thus, she was one of the hundreds in attendance that were given actual notice of the consequences of her behavior…
Even more striking is that school officials have reported to me that after my presentation at her school they specifically confronted this girl regarding concerns they had and they specifically warned her to take heed of the message she had heard from my presentation. Thus, this girl got a personal face-to-face warning, of the consequences of this behavior.
Notwithstanding all of this, a few days later this girl is alleged to have nonetheless sent naked pictures of herself to others. …it is clear that this girl has no excuse for not knowing that taking, sending, and/or possessing these types of pictures is not just inappropriate, but it is also illegal, and that upon doing so she faced the prospect of being prosecuted.
In other words, this apparently was not a case of an unknowing transgression or of not thinking things through.
Oswalt further discounts the 20 years of sex offender registration by pointing out that even if she’s found guilty, the judge has the discretion to waive the registration requirement.
If it is proven at trial that this girl committed these offense, it will be unfortunate indeed that this girl did not take heed of all the warnings given to her …. warnings, incidentally, the law did not require her to be given. Hopefully others will learn a lesson from her situation.
So this is about teaching her, and others, a lesson. I’m not entirely comfortable with that, but it’s not the worst excuse I’ve ever heard.