Prosecutor Defends Child Pornography Charge While Admitting It Is Unjust and Inappropriate

The New York Times reports that Muskegon County, Michigan, Prosecutor Tony Tague is ready to cut a deal with Evan Emory, the 21-year-old prankster he charged with producing child pornography based on a video edited to make it seem like Emory performed a sexually explicit song for a classroom full of first-graders. Tague's willingness to drop the charge, which carries a maximum penalty of 20 years in prison, is not surprising, since it made no sense in the first place—not just as a matter of justice but as a matter of law. The statute that Tague accused Emory of violating makes it a felony to produce "child sexually abusive material," defined as "any depiction…which is of a child or appears to include a child engaging in a listed sexual act" (emphasis added). A "listed sexual act" is defined as "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity." So even if Emory had actually sung his dirty ditty to a bunch of 6-year-olds, he would not be guilty of this crime.

Carissa B. Hessick, an Arizona State law professor specializing in child pornography, is too kind when she wonders, in an interview with the Times about Emory's case, "whether they've overcharged him." It looks like Tague brought a legally bogus charge simply to appease angry parents and impress upon Emory the insensivity of his ill-considered prank by threatening to ruin his life with two decades in prison followed by 25 years as a registered sex offender. Having abused the law in this way, Tague acts as if deciding to follow the statute is a magnanimous act of mercy:

Mr. Tague defends his original charge but says he wants to resolve the case in a way "that will send a message that this is wrong but will not ruin the young man's life."

One path under discussion, Mr. Nolan [Emory's lawyer] said, would be for Mr. Emory to plead to a lesser charge, receiving some jail time, probation and community service. He would not have to register as a sex offender. But any deal would need approval from a judge. A hearing is set for next Monday.

Meanwhile, a father of one of the first-graders who appeared in Emory's video tells the Times:

Does 20 years fit the crime? No….Would I care if he got 20 years? No.

Even coming from an understandably angry parent, this attitude does not make much sense: If you consider a punishment unjust, doesn't that mean it troubles you, by definition? But as a public official charged with enforcing the law, Tague is not supposed to act on emotion, whether his or anyone else's. He is supposed to follow the law and pursue justice, which he clearly failed to do in this case.

Radley Balko noted Emory's legal troubles last month.