That’s seriously harsh. Not just the parents but the law deciding when you’re allowed to have sex? No surprise that teenager’s gain a reputation for rebelliousness.
Yes, the US is one of the more puritan “Christian” countries. In the US, two teenagers cannot have consensual sex together, by law. If they do have sex, they are both punished. (Some states have recently passed exceptions that tend to start at age 16-17, for couples that are of the same age. Even then, two 17 year old can have sex but an 18 year old can’t have sex with a 17 year old because one’s a major and the other one’s a minor. Choose your mate’s birthday carefully.)
As an aside, many US teens who took nude photos of themselves and gave them to their boy- or girlfriend have been charged with the high crime of distribution of child porn. Here is a report on one such Florida couple, aged 16 and 17, who were convicted (on the appeal, too). They kept the photos for themselves, but someone tipped off the police, the court record doesn’t say who—possibly the parents. The appeal judge wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money.
The CNET article doesn’t say what their punishment was, and anyway it was a random Google result out of at least dozens of similar cases, but I would imagine registration on the sex offender list for many years—which takes away a lot of rights no matter what your age—and jail time and/or probation and/or whatever they tend to give to 17 year old felons in Florida.
As an aside, many US teens who took nude photos of themselves and gave them to their boy- or girlfriend have been charged with the high crime of distribution of child porn.
It is scary that that judge is allowed to vote, let alone pass sentences.
The appeal judge wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money.
You know how bad the media is when it reports science? Well, it doesn’t get much better for law, sadly.
The defendant’s appeal claimed that her right of privacy was being violated by this prosecution. An essential part of that is whether she had a reasonable expectation of privacy. The conclusion was she did not: if teens take naked pictures of each other, there’s a meaningful chance that those pictures will be shared with third parties. This same reasoning has been used to break the privacy defense for photographs of prisoner abuse. This doesn’t help her:
In fact, the defendant in this case expressed her concern to law enforcement that her co-defendant might do something disagreeable with the photographs.
The opinion is interesting, though I say that from a law-oriented background. The law being idiotic does not necessarily make the judge idiotic, and there’s at least a very good argument that the majority applied the law correctly. No expectation of privacy, no right to privacy defense.
They may have erred when they ruled this prosecution counts as the “least intrusive method” to uphold state interests, but I just don’t know the case law on that.
You know how bad the media is when it reports science? Well, it doesn’t get much better for law, sadly.
My lament referred explicitly to the “the appeal judge [who] wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money” and so it stands. You haven’t said as much directly, but am I to take it that you do not believe this judge is factual? If so, I rejoice in his absence from reality.
The CNET report was sensationalized, as Psychohistorian pointed out to me in another comment. You can read the judge’s (appellate majority) opinion here.
The appeal was about their right to privacy, and the judge’s opinion that “if left alone they might...” was saying that because they might do this in the future, and because he expected them to do so, they gave up their right to privacy by creating those photos. Because digital photos are so easy to distribute, so they would surely do so someday even if by mistake. So if they use cellphones to take photos, they give up privacy.
...No, it doesn’t sound much better put that way, does it? But it wasn’t the justification for the original conviction; CNET doesn’t link to that opinion.
Even this is a caricature of the actual legal question. In order for a right of privacy to attach (and that’s her argument against the law), you have to have reasonable expectation of privacy. In this context, that means that you have to have a reasonable expectation that no third party will be exposed or involved. The majority concluded that a high school teenager cannot reasonably expect that no one will ever see the naked pictures she takes with her boyfriend and then sends to his hard drive. In fact, the defendant explicitly stated that she was worried her boyfriend might distribute those naked pictures. The decision also states that, in the context of a more mature or serious relationship, privacy would likely have attached, because some expectation would have been reasonable. There’s still plenty of room to disagree with this, but it’s a lot less absurd than people are trying to make it.
As far as the whole decision goes, if you keep in mind that the judges (and, more importantly, the law) see child pornography (even of basically adults) as an evil that is abhorrent to society, and that damages society by its mere existence, the whole decision is a lot more understandable. Whether you agree with that view or not is largely irrelevant; the voting public seems to have made it rather clear that that is their attitude.
Future guilt had nothing to do with it. The question was about whether an expectation was reasonable; an expectation is necessarily about the future. The court concluded that one cannot expect a teenage boy to keep naked pictures of his girlfriend to himself indefinitely. It may be incorrect or unfair, but it isn’t absurd or unreasonable. It certainly isn’t convicting anyone on the basis of future guilt.
It is my understanding that if the court had not made this determination, it might have had to uphold the defense’s claim to right of privacy, and the defendants would have have been acquitted on appeal.
It is worthwhile quoting the entire relevant part of the judge’s opinion, for those who don’t want to spend time reading the source:
First, the decision to take photographs and to keep a record that may be shown to people in the future weighs against a reasonable expectation of privacy. See [....]
So, he equates privacy with deliberate secrecy. That’s not a presumption of privacy. Note that I’m commenting on common reason, not on whatever the relevant case law may be.
Second, the photographs which were taken were shared by the two minors who were involved in the sexual activities. Neither had a reasonable expectation that the other would not show the photos to a third party. Minors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the
photographs will not be shared with others intentionally or unintentionally. One motive for revealing the photos is profit. Unfortunately, the market for child pornography in this country, according to news reports, appears to be flourishing. See, e.g., [....] These 117 sexually explicit photographs would undoubtedly have market value.
(My emphasis.) So, he says that because they are teenagers, their relationship cannot be “mature and committed”, and so we must assume that one of them will in the future hurt the other for money (not even in revenge or somesuch).
In addition, a number of teenagers want to let their friends know of their sexual prowess. Pictures are excellent evidence of an individual’s exploits. A reasonably prudent person would believe that if you put this type of material in a teenager’s hands that, at some point either for profit or bragging rights, the material will be disseminated to other members of the public.
Distribution of these types of photos is likely, especially after the relationship has ended. It is not unreasonable to assume that the immature relationship between the co-defendants would eventually end. The relationship has neither the sanctity of law nor the stability of maturity or length. The subjective belief of these co-defendants that
the photos might not be shared is not dispositive. In fact, the defendant in this case expressed her concern to law enforcement that her co-defendant might do something disagreeable with the photographs.
The mere fact that the defendant may have subjectively believed that the pictures would remain private does not control; it is whether society is willing to recognize an objective expectation.
(My emphasis.) IOW: each of them is capable of harming the other in the future. Because they are teenagers, we assume they will do so. We explicitly disregard their trust in one another; the relevant point is that we, the society, do not trust them. Therefore we will punish both of them proactively by withdrawing their right to privacy.
It is scary that many judges and public prosecutors in different states agree on charging such young people and declaring them guilty. I don’t know the percentage of charges and of convictions out of all proposed cases or reports and accusations made to the police, but the actual count is apparently in the dozens (google tells me).
It is not, however, surprising, considering common (and legal) attitudes to morality, sexuality and young people’s rights in the U.S.
The logic that it is frightening that this man’s decisions have power over us, whether in his capacities as judge or as voter. Hence it is frightening that a great many people in whom we would not entrust our lives also have votes.
Jurors are treated very differently from voters. They are selected so as not to be biased, they can be removed during the trial, they are kept away from outside influences, the evidence they are allowed to hear is very restricted, they are given instructions on how to vote for various charges and it is the judge who determines the actual sentence in response to their decision. If it is deemed that something went wrong (even years after the sentence is handed down), a mistrial may be declared.
More realistically, they’re selected so as to have a bias acceptable to the counsels and the judge, they are kept away from, uh, undesirable influences, they are given the evidence that the counsels & judge think will make them vote appropriately.
The only possible way a jury system could be any good is by being compared with even more horrid alternatives, like a judge-only court. Sort of like democracy.
There’s plenty of countries where democratic rule is good and stable, and it’s not too hard to predict those. Some obvious predictive variables are tradition of rule of law (which you get transitioning out of some dictatorship like Korean, but not some others like Soviet), low economic inequality, and stability of political system.
All happen to be false in case of South Africa. But these also tend to correlate with wellness and stability of any other political system—so democracy might still be the least bad system for South Africa, given such constraints.
Sweet Jesus, I hate the media. If you check out that article, note the ”...” in the summary of the majority opinion. Here’s how it reads as quoted:
As previously stated, the reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material. In addition, the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment… Appellant was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved.
Here’s that ”...:”
Without either foresight or maturity, appellant engaged in the conduct
at issue, then expressed concern to law enforcement personnel that her
co-defendant may do something inappropriate, i.e., disseminate sexually
explicit photos that were lodged on his computer.
In other words, the article is deliberately constructed to make the concern that the photos be disseminated seem absurd. But the defendant herself expressed a concern that they would be disseminated!.
Also, fun fact: it wasn’t a picture. It was 117 pictures. Might that increase the odds that one or more gets distributed? Story doesn’t bother with that little fact.
She “expressed a concern”? When it wasn’t her idea to talk to the police in the first place, and when the police’s job is to make her look as bad as possible so she can be convicted? For all I know it went like this:
Police interviewer: did you intend for your boyfriend to spread those photos?
Defendant: no I didn’t. And he hasn’t.
Police: but it’s possible he’ll do it one day, right? If you break up, say.
Defendant: I don’t believe he’ll do it, but I suppose it’s possible.
Police: imagine he has done so. And all your class has got nude photos of you. Doesn’t that scenario concern you?
Defendant: yeah, that would concern me if it happened...
Bottom line: the majority opinion says “he statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment”. How do they protect them? Not, say, by having the police destroy the photos and telling them to go home and be smarter next time. They protect them by putting them through court and a conviction.
Here’s a relevant part of the majority appellate opinion:
The Court further finds that prosecuting the child under the statute in question is the least intrusive means of furthering the State’s compelling interest. Not prosecuting the child would do nothing to further the State’s interest. Prosecution enables the State to prevent
future illegal, exploitative acts by supervising and providing any necessary counseling to the child. The Court finds that the State has shown that Section 827.071(3), Florida Statutes, as applied to the child, is the least intrusive means of furthering the State’s
compelling interest in preventing the sexual exploitation of children, rendering the statute constitutional.
Least intrusive? Really? It must have taken some creative law-writing to make it so, when ordinarily the state has so many ways of interfering in a teenager’s life.
Not, say, by having the police destroy the photos and telling them to go home and be smarter next time.
How much of a deterrent effect do you think this has? “OK, kids, you’re creating a thing that is a complete abomination to the people of this state, a form of speech so vulgar that even the first amendment won’t touch it, and that mere possession of it carries a prison sentence. And if you do it, you’re going to get the worst talking-to you can imagine! We’ll tell you that what you did was wrong! And that you shouldn’t do it again! And we’ll delete all the digital copies! Well, all the ones we can find, anyhow! That will teach you to manufacture child pornography! And you can bet we’ll be devoting serious police and prosecutorial resources to ensure that we gently slap you on the wrist!”
It has to be the least intrusive means of furthering the state’s compelling interest. Giving kids a lecture and telling them “don’t do it again” does not effectively further those interests. The legislature has determined it should be criminal, and it’s not in the power of the courts to say, “Well, it’s a second degree felony, but screw the voters, we think it should be a fourth degree felony!” The state has a compelling interest, and any reasonable action short of criminalization will not effectively further that interest. It’s not the place of the courts to be fine-tuning criminal punishments because they think the ones the legislature came up with are too easy (or too harsh).
As far as the summary of her talking to the cops, that’s pure conjecture. We don’t even know if she was interrogated; they certainly didn’t need to talk to her once they had that evidence. For all we know, they found about the pictures because she called them out of fear her boyfriend would distribute them. I also doubt that the police were sophisticated enough to be prying into her grounds for a constitutional defense at the appellate level. And such an interrogation certainly isn’t mentioned in the dissenting opinion (which is right below the majority one). And it’s somewhat irrelevant; if she genuinely believed her boyfriend had a realistic chance of distributing them, she did not have a reasonable expectation of privacy. And if she didn’t think there was any such realistic chance, she shouldn’t have told the cops she was actually worried he’d distribute them.
This is a law governing the existence of a thing so abhorrent, mere possession of it is a felony. The state has a compelling interest, not merely in punishing those who create it, but in ensuring that it is never created in the first place. You may take issue with this, and say, “Well, it ain’t so bad,” but that’s simply not what the law says, and you don’t get to rewrite the law.
Merely to reiterate that the law on child porn doesn’t care what the age of the creator (photographer) or the possessor is. It only cares what the age of the photographed minor is, for the purposes of defining child porn. But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied. And so this is a small part of the relevance of this whole story to the original discussion on youth rights.
But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied.
If I went to a bar, met some woman, went home with her, and we consensually took naked pictures with each other, and sent them to each other, privacy would not attach (at least under the reasoning of this ruling). The minors were not denied privacy for the simple fact that they were minors; they were denied privacy because the nature of society and of their relationship did not create a reasonable expectation of privacy. I believe that if a significant expectation of privacy had been demonstrated (they were engaged, they had been in a relationship for an extended period of time, they had drawn up some kind of non-disclosure contract, etc.), the case would have turned out differently.
Edit: I remembered the judge’s opinion incorrectly, so I withdraw my comment here (it was only posted for a few minutes). My apologies.
I can add though that the whole case makes people uneasy because it’s convoluted, as court cases often are. The appeal’s argument is that the state should have respected the teenagers’ privacy. The appeal court denies the argument for privacy because it feels the girl must be protected from her boyfriend, who may use those photos against her. As the court opinion says,
Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives.
So how do they protect her in case her boyfriend hurts her in the future? By making her a felon, putting her on probation, and using up her money on court cases.
Just to be fair, although the child pornography laws are ridiculous (you want to make its production illegal, fine, but not its possession and distribution), some states have laws that make a little more sense when it comes to age of consent for sexual relations. In Florida (which I know only because I live there), a person under the age of 24 can have sex with a person who is at least 16 years of age legally. Of course, this still isn’t that great because the law considers anyone under the age of 16 unable to consent (not listed in this statute), but at least it opens up a wide “grey area” that eliminates the majority of silly “rape” cases.
Yes, the US is one of the more puritan “Christian” countries. In the US, two teenagers cannot have consensual sex together, by law. If they do have sex, they are both punished. (Some states have recently passed exceptions that tend to start at age 16-17, for couples that are of the same age. Even then, two 17 year old can have sex but an 18 year old can’t have sex with a 17 year old because one’s a major and the other one’s a minor. Choose your mate’s birthday carefully.)
As an aside, many US teens who took nude photos of themselves and gave them to their boy- or girlfriend have been charged with the high crime of distribution of child porn. Here is a report on one such Florida couple, aged 16 and 17, who were convicted (on the appeal, too). They kept the photos for themselves, but someone tipped off the police, the court record doesn’t say who—possibly the parents. The appeal judge wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money.
The CNET article doesn’t say what their punishment was, and anyway it was a random Google result out of at least dozens of similar cases, but I would imagine registration on the sex offender list for many years—which takes away a lot of rights no matter what your age—and jail time and/or probation and/or whatever they tend to give to 17 year old felons in Florida.
It is scary that that judge is allowed to vote, let alone pass sentences.
It is not the fault of the judiciary that the people consistently elect profoundly stupid legislators.
You know how bad the media is when it reports science? Well, it doesn’t get much better for law, sadly.
The defendant’s appeal claimed that her right of privacy was being violated by this prosecution. An essential part of that is whether she had a reasonable expectation of privacy. The conclusion was she did not: if teens take naked pictures of each other, there’s a meaningful chance that those pictures will be shared with third parties. This same reasoning has been used to break the privacy defense for photographs of prisoner abuse. This doesn’t help her:
The opinion is interesting, though I say that from a law-oriented background. The law being idiotic does not necessarily make the judge idiotic, and there’s at least a very good argument that the majority applied the law correctly. No expectation of privacy, no right to privacy defense.
They may have erred when they ruled this prosecution counts as the “least intrusive method” to uphold state interests, but I just don’t know the case law on that.
My lament referred explicitly to the “the appeal judge [who] wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money” and so it stands. You haven’t said as much directly, but am I to take it that you do not believe this judge is factual? If so, I rejoice in his absence from reality.
The CNET report was sensationalized, as Psychohistorian pointed out to me in another comment. You can read the judge’s (appellate majority) opinion here.
The appeal was about their right to privacy, and the judge’s opinion that “if left alone they might...” was saying that because they might do this in the future, and because he expected them to do so, they gave up their right to privacy by creating those photos. Because digital photos are so easy to distribute, so they would surely do so someday even if by mistake. So if they use cellphones to take photos, they give up privacy.
...No, it doesn’t sound much better put that way, does it? But it wasn’t the justification for the original conviction; CNET doesn’t link to that opinion.
Even this is a caricature of the actual legal question. In order for a right of privacy to attach (and that’s her argument against the law), you have to have reasonable expectation of privacy. In this context, that means that you have to have a reasonable expectation that no third party will be exposed or involved. The majority concluded that a high school teenager cannot reasonably expect that no one will ever see the naked pictures she takes with her boyfriend and then sends to his hard drive. In fact, the defendant explicitly stated that she was worried her boyfriend might distribute those naked pictures. The decision also states that, in the context of a more mature or serious relationship, privacy would likely have attached, because some expectation would have been reasonable. There’s still plenty of room to disagree with this, but it’s a lot less absurd than people are trying to make it.
As far as the whole decision goes, if you keep in mind that the judges (and, more importantly, the law) see child pornography (even of basically adults) as an evil that is abhorrent to society, and that damages society by its mere existence, the whole decision is a lot more understandable. Whether you agree with that view or not is largely irrelevant; the voting public seems to have made it rather clear that that is their attitude.
No, it really doesn’t. But I do understand the desire to justify the decision that he had made.
Actually come to think of it that description sounds even more scary. Guilty (in the future) when that the media in question is proven reproducible.
Future guilt had nothing to do with it. The question was about whether an expectation was reasonable; an expectation is necessarily about the future. The court concluded that one cannot expect a teenage boy to keep naked pictures of his girlfriend to himself indefinitely. It may be incorrect or unfair, but it isn’t absurd or unreasonable. It certainly isn’t convicting anyone on the basis of future guilt.
It is my understanding that if the court had not made this determination, it might have had to uphold the defense’s claim to right of privacy, and the defendants would have have been acquitted on appeal.
It is worthwhile quoting the entire relevant part of the judge’s opinion, for those who don’t want to spend time reading the source:
So, he equates privacy with deliberate secrecy. That’s not a presumption of privacy. Note that I’m commenting on common reason, not on whatever the relevant case law may be.
(My emphasis.) So, he says that because they are teenagers, their relationship cannot be “mature and committed”, and so we must assume that one of them will in the future hurt the other for money (not even in revenge or somesuch).
(My emphasis.) IOW: each of them is capable of harming the other in the future. Because they are teenagers, we assume they will do so. We explicitly disregard their trust in one another; the relevant point is that we, the society, do not trust them. Therefore we will punish both of them proactively by withdrawing their right to privacy.
It is scary that many judges and public prosecutors in different states agree on charging such young people and declaring them guilty. I don’t know the percentage of charges and of convictions out of all proposed cases or reports and accusations made to the police, but the actual count is apparently in the dozens (google tells me).
It is not, however, surprising, considering common (and legal) attitudes to morality, sexuality and young people’s rights in the U.S.
Given the context it seems ironic to let them off based off youth. No, I’ll let them off because the crime itself is absurd.
It’s a pity you didn’t extend the logic further.
The logic being that I disapprove of the judge’s ruling and wish to undermine his credibility with mockery?
The logic that it is frightening that this man’s decisions have power over us, whether in his capacities as judge or as voter. Hence it is frightening that a great many people in whom we would not entrust our lives also have votes.
And there’s that whole ‘jury of my peers’ thing that really scares me. Good point (that I really didn’t want to be reminded of.)
Jurors are treated very differently from voters. They are selected so as not to be biased, they can be removed during the trial, they are kept away from outside influences, the evidence they are allowed to hear is very restricted, they are given instructions on how to vote for various charges and it is the judge who determines the actual sentence in response to their decision. If it is deemed that something went wrong (even years after the sentence is handed down), a mistrial may be declared.
More realistically, they’re selected so as to have a bias acceptable to the counsels and the judge, they are kept away from, uh, undesirable influences, they are given the evidence that the counsels & judge think will make them vote appropriately.
The only possible way a jury system could be any good is by being compared with even more horrid alternatives, like a judge-only court. Sort of like democracy.
Good points. I’m reminded of Robin’s Law as No-Bias Theatre.
Old South African government didn’t really “work” for anyone who wasn’t white.
Some black south africans disagree.
Just because the new black government is bad, doesn’t mean the old white government wasn’t bad.
Some government collapses go quite well, others like South Africa and Soviet Union don’t.
Fair enough. The point wasn’t that white rule is good, but that democratic rule is bad.
There’s plenty of countries where democratic rule is good and stable, and it’s not too hard to predict those. Some obvious predictive variables are tradition of rule of law (which you get transitioning out of some dictatorship like Korean, but not some others like Soviet), low economic inequality, and stability of political system.
All happen to be false in case of South Africa. But these also tend to correlate with wellness and stability of any other political system—so democracy might still be the least bad system for South Africa, given such constraints.
Sweet Jesus, I hate the media. If you check out that article, note the ”...” in the summary of the majority opinion. Here’s how it reads as quoted:
Here’s that ”...:”
In other words, the article is deliberately constructed to make the concern that the photos be disseminated seem absurd. But the defendant herself expressed a concern that they would be disseminated!.
Also, fun fact: it wasn’t a picture. It was 117 pictures. Might that increase the odds that one or more gets distributed? Story doesn’t bother with that little fact.
This just in: don’t believe everything you read.
She “expressed a concern”? When it wasn’t her idea to talk to the police in the first place, and when the police’s job is to make her look as bad as possible so she can be convicted? For all I know it went like this:
Police interviewer: did you intend for your boyfriend to spread those photos? Defendant: no I didn’t. And he hasn’t. Police: but it’s possible he’ll do it one day, right? If you break up, say. Defendant: I don’t believe he’ll do it, but I suppose it’s possible. Police: imagine he has done so. And all your class has got nude photos of you. Doesn’t that scenario concern you? Defendant: yeah, that would concern me if it happened...
Bottom line: the majority opinion says “he statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment”. How do they protect them? Not, say, by having the police destroy the photos and telling them to go home and be smarter next time. They protect them by putting them through court and a conviction.
Here’s a relevant part of the majority appellate opinion:
Least intrusive? Really? It must have taken some creative law-writing to make it so, when ordinarily the state has so many ways of interfering in a teenager’s life.
Oh, fun! I get to advocate for the Devil.
How much of a deterrent effect do you think this has? “OK, kids, you’re creating a thing that is a complete abomination to the people of this state, a form of speech so vulgar that even the first amendment won’t touch it, and that mere possession of it carries a prison sentence. And if you do it, you’re going to get the worst talking-to you can imagine! We’ll tell you that what you did was wrong! And that you shouldn’t do it again! And we’ll delete all the digital copies! Well, all the ones we can find, anyhow! That will teach you to manufacture child pornography! And you can bet we’ll be devoting serious police and prosecutorial resources to ensure that we gently slap you on the wrist!”
It has to be the least intrusive means of furthering the state’s compelling interest. Giving kids a lecture and telling them “don’t do it again” does not effectively further those interests. The legislature has determined it should be criminal, and it’s not in the power of the courts to say, “Well, it’s a second degree felony, but screw the voters, we think it should be a fourth degree felony!” The state has a compelling interest, and any reasonable action short of criminalization will not effectively further that interest. It’s not the place of the courts to be fine-tuning criminal punishments because they think the ones the legislature came up with are too easy (or too harsh).
As far as the summary of her talking to the cops, that’s pure conjecture. We don’t even know if she was interrogated; they certainly didn’t need to talk to her once they had that evidence. For all we know, they found about the pictures because she called them out of fear her boyfriend would distribute them. I also doubt that the police were sophisticated enough to be prying into her grounds for a constitutional defense at the appellate level. And such an interrogation certainly isn’t mentioned in the dissenting opinion (which is right below the majority one). And it’s somewhat irrelevant; if she genuinely believed her boyfriend had a realistic chance of distributing them, she did not have a reasonable expectation of privacy. And if she didn’t think there was any such realistic chance, she shouldn’t have told the cops she was actually worried he’d distribute them.
This is a law governing the existence of a thing so abhorrent, mere possession of it is a felony. The state has a compelling interest, not merely in punishing those who create it, but in ensuring that it is never created in the first place. You may take issue with this, and say, “Well, it ain’t so bad,” but that’s simply not what the law says, and you don’t get to rewrite the law.
I’m not going to argue with the devil :-)
Merely to reiterate that the law on child porn doesn’t care what the age of the creator (photographer) or the possessor is. It only cares what the age of the photographed minor is, for the purposes of defining child porn. But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied. And so this is a small part of the relevance of this whole story to the original discussion on youth rights.
If I went to a bar, met some woman, went home with her, and we consensually took naked pictures with each other, and sent them to each other, privacy would not attach (at least under the reasoning of this ruling). The minors were not denied privacy for the simple fact that they were minors; they were denied privacy because the nature of society and of their relationship did not create a reasonable expectation of privacy. I believe that if a significant expectation of privacy had been demonstrated (they were engaged, they had been in a relationship for an extended period of time, they had drawn up some kind of non-disclosure contract, etc.), the case would have turned out differently.
Edit: I remembered the judge’s opinion incorrectly, so I withdraw my comment here (it was only posted for a few minutes). My apologies.
I can add though that the whole case makes people uneasy because it’s convoluted, as court cases often are. The appeal’s argument is that the state should have respected the teenagers’ privacy. The appeal court denies the argument for privacy because it feels the girl must be protected from her boyfriend, who may use those photos against her. As the court opinion says,
So how do they protect her in case her boyfriend hurts her in the future? By making her a felon, putting her on probation, and using up her money on court cases.
Just to be fair, although the child pornography laws are ridiculous (you want to make its production illegal, fine, but not its possession and distribution), some states have laws that make a little more sense when it comes to age of consent for sexual relations. In Florida (which I know only because I live there), a person under the age of 24 can have sex with a person who is at least 16 years of age legally. Of course, this still isn’t that great because the law considers anyone under the age of 16 unable to consent (not listed in this statute), but at least it opens up a wide “grey area” that eliminates the majority of silly “rape” cases.
As a matter of record: most states set the age of consent at 16 not 18.