Police blotter: Teens prosecuted for racy photos

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What: Teenagers taking risque photos of themselves are prosecuted for violating child pornography laws.

When: Florida state appeals court rules on January 19.

Outcome: A 2-1 majority upholds conviction on grounds the girl produced a photograph featuring the sexual conduct of a child.

What happened, according to court documents:
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.

Court records don't say exactly what happened next...but somehow Florida police learned about the photos.

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."

Excerpt from Wolf's majority opinion:
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.

Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.

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