Scarform’s Blog

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“Combine unsupervised teenagers, digital cameras and e-mail, and, given sufficient time, you’ll end up with risque photographs on a computer somewhere.

There’s a problem with that: Technically, those images constitute child pornography. That’s what 16-year-old Amber and 17-year-old Jeremy, her boyfriend, both residents of the Tallahassee, Fla., area, learned firsthand. (Court documents include only their initials, A.H. and J.G.W., so we’re using these pseudonyms to make this story a little easier to read.)

On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified “sexual behavior.” The two sent the photos from a computer at Amber’s house to Jeremy’s personal e-mail address. Neither teen showed the photographs to anyone else.

Court records don’t say exactly what happened next–perhaps the parents wanted to end the relationship and raised the alarm–but somehow Florida police learned about the photos.

Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.

Some more background: Under a 1995 ruling in a case called B.B. v. State, the Florida Supreme Court said that a 16-year-old could not be found delinquent for having sex with another 16-year-old.

“The crux of the state’s interest in an adult-minor situation is the prevention of exploitation of the minor by the adult,” the majority said at the time. The court ruled that a Florida statute punishing sex between teens was “unconstitutional as applied to this 16-year-old as a basis for a delinquency proceeding.”

The same applies to Amber and Jeremy. Even though he is a year older than her, he is still a minor in Florida.

In other words, under Florida law, Amber and Jeremy would be legally permitted to engage in carnal relations, but they’re criminals if they document it.

Amber’s attorney claimed that the right to privacy protected by the Florida Constitution shielded the teen from prosecution, an argument that a trial judge rejected. Amber pleaded no contest to the charges and was placed on probation, though she reserved her right to appeal her constitutional claim.

By a 2-1 vote, the appeals court didn’t buy it. Judge James Wolf, a former prosecutor, wrote the majority opinion.

Wolf speculated that Amber and Jeremy could have ended up selling the photos to child pornographers (”one motive for revealing the photos is profit”) or showing the images to their friends. He claimed that Amber had neither the “foresight or maturity” to make a reasonable estimation of the risks on her own. And he said that transferring the images from a digital camera to a PC created innumerable problems: “The two computers (can) be hacked.”

Judge Philip Padovano dissented. He wrote that the law “was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child’s right to privacy under Article 1, Section 23 of the Florida Constitution.”

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These two young adults took pictures of themselves naked and engaged in otherwise legal sex amongst themselves and the judge wants to call them child pornographers?! Did I miss the memo? Did I get on the wrong bus?

So the mere production of an otherwise legal event is grounds for labeling them sex offenders? I don’t get it.

One of the “finer points” of the judges case was that the e-mail address to which the pictures were sent (or both of their computers) could have been hacked, and these files could have been leaked. Can we look at this in a semi-computer literate light for a moment?

Any computer at any time can be hacked regardless of what’s on it. What’s even more ridiculous is that anybody would even know enough about it to go “Hmm, there are pictures of this 16 and 17 year old having sex, I think I’ll just hack this computer and steal them.”

What the fuck is wrong with America?! They were doing no harm to anyone. That’s the bottom line. There was no exploitation, there was no foul play. Nobody got raped. And I think what really blows my mind is that in a year, they’ll be able to make these kind of decisions without the law interfering.

What will have changed in a year? Really.

Why don’t you spend more time finding the child pornographers who are actually hurting kids and stop arresting the kids for taking photos of otherwise legal activities within the given circumstances!

“He claimed that Amber had neither the “foresight or maturity” to make a reasonable estimation of the risks on her own.” Because she took pictures? If she hadn’t taken pictures, would that change anything?

Seriously - for the love of Fucking Christ - more effort in catching the real criminals, less on the invasion of privacy of the people who aren’t criminals.

I know justice is blind, but I didn’t think it was also deaf and dumb.