The Yearbook Is Not Just Child Pornography; It's Also Evidence of a Sex Crime

The good news: As of last week, all but two copies of Big Bear High School's 2011 yearbook had been collected, and the owners of the remaining copies, who were out of town, had agreed to turn them in when they got back. Presumably that means none of the students will be charged with possession of child pornography, as police threatened to do after administrators at the Southern California school discovered what looked like an accidentally captured sex act in the background of a photo from the winter formal.

The bad news: The 17-year-old boy caught with his hand up a 15-year-old girl's skirt may be charged with "sexual penetration of a minor," which can be a misdemeanor or a felony depending on the circumstances. If convicted, he would have to register as a sex offender.

Jeremiah MacKay, a detective with the San Bernardino County Sheriff's Department, told the Riverside Press-Enterprise

If someone tells us someone is having sex with a minor, it doesn't matter the age of the suspect, we're required by law to investigate. As much as we know that teenagers go out and have sex, we can't just overlook it.

Under California law, "any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year." The act becomes a felony if the encounter involves "force, violence, duress, menace, or fear," if "the victim is at the time unconscious of the nature of the act," if "the victim is prevented from resisting by any intoxicating or anesthetic substance," or if "the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent." MacKay told the Press-Enterprise the district attorney's office had not decided yet whether to charge the offense as misdemeanor or a felony.

For more on what registration as a sex offender entails, see my feature story "Perverted Justice" in the July issue of Reason.

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  • fyngyrz||


    Government out of control; doing the wrong thing, massively harmful, for the wrong reasons, unable to be reined in, completely out of line.



    Here go more people's lives down the tube for no good reason.

  • TRTB||

    As long as it's what the majority wants, it's cool. Quityerbitchin.

  • ||

  • ||

    as usual, there is fault here. WITH THE LEGISLATURE that passes such moronic laws. my state has no such law.

  • Jim||

    You know, not to harp on this, but if certain people refused to enforce bad laws, then it wouldn't matter what the legislature does.

  • Mnemone Jones||

    I don't think that's a very good way to go. That would make the freedom of many up to the whims of the enforcers. If you get lucky and get someone reasonable, that's nice, but you can't bet on it in all places or over long periods of time.

    Besides, such an approach erodes the rule of law directly by making its application extremely uneven.

  • Jim||

    I disagree, with this logic: right now, they pretty much have to bring you in for some things (see the sheriff's comment in the story). So we're already in the worst case scenerio, with all the nanny-state laws in place. It can't get worse, because cops can't invent laws; they could only choose to not enforce certain ones, which is a reduction of the burden on citizens.

  • Jim||

    Oh, and you're right in that it would make things uneven, but I'd rather have an uneven shot at liberty than the certainty of being fucked over.

  • Apogee||

    such an approach erodes the rule of law directly

    It's already eroded.

  • Edwin||

    is it though?
    The judiciary, from what I understand, is just as to blame. It's basic logic, how can someone who's a minor who can't be completely trusted or held responsible in his choices and actionsbe guilty? How about those child porno laws? Would it really be a stretch to imagine that when the legislatures were passing them, they WEREN'T THINKING OF KIDS TEXTING THEIR OWN PICTURES OF THEMSELVES IN BIKINS!? This would not be a far walk from the absurdity doctrine and would only barely go into the realm of determining the original intent of written law.

    And what about what the cop is saying? Is it even true? Is there a law that obligates them to investigate or prosecute evry such crime? Because if not, they do have complete discretion with no liability. And if they're worried about media/citizen complaint liability, they could just explain their position if they decided to, you know, actually be reasonable.

  • .||

    Under California law, "any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year."

    So how come they aren't charging the girl also? Looks to me like she is an equal participant - even if she was completely passive. After all...inactivity is now a form of activity according to certain federal courts.

  • Fist of Etiquette||

    How are school administrators getting off scot-free after distributing child pornography?

  • Anonymous Coward||

    The Educational Mandarins can't be held responsible for their behavior, only the little people can be held responsible.

    The memo. Get it.

  • ||

    The memo. Get it.

    I tried, but the copy they gave me was mostly redacted.

  • Mnemone Jones||

    You are still responsible for knowing its content!

  • Bee Tagger||

    As long as you say "don't bogart the kiddie porn", you're safe.

  • Coeus||

    So how come they aren't charging the girl also? Looks to me like she is an equal participant

    Because California went all the way to the supreme court to defend their practice of not charging girls with this crime. Oddly, I've never heard a feminist bitch about this gross inequality.

  • Dave||

    Yes - the sexist enforcement of these laws adds to their injustice. If both parties are intoxicated, who's raping whom? I don't think it's always clear.

    In this case, there should be HUGE "reasonable doubt" and not enough evidence to even charge anybody. How do you know the girl is not a willing participant? How do you know exactly what he is touching? The whole thing is beyond ridiculous. But then again, sex crimes without any actual evidence (just a mere accusation) are routinely prosecuted - and juries sometimes convict without any actual evidence. This society's irrational approach to "sex crimes" is identical to the Salem witch trials.

  • Coeus||

    But then again, sex crimes without any actual evidence (just a mere accusation) are routinely prosecuted - and juries sometimes convict without any actual evidence.

    This is true of all crimes.

  • ||

    That's a lie. They most certainly can overlook it. It's called prosecutorial discretion. "We have no choice but to charge the individual with a crime" and "let the jury decide" are the government's two biggest fictional excuses for ridiculous behavior.

  • Mnemone Jones||

    + 1

  • pmains||

    Are you still around? I heard the Constitution gave you smallpox and you died.

  • ||

    To be fair, SOME amount of "looking" has to be done before any discretion can come into play. Otherwise they'd just be dismissing all allegations outright.

  • Almanian||

    Round up the usual suspects!

  • Mr Whipple||

    They at least need to get their info and prints into the system and possibly their DNA. The earlier the better.

  • Ice Nine||

    Under California law, "any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished

    Are these great San Bernadino S.O. sleuths who are "required by law to investigate" this going to investigate as well the 15yo girl who (possibly) "participated in an act of sexual penetration with another person"? I mean, as long as these idiots are ginning this thing up purely on the basis of wringing whatever they can out of the letter of the law...

  • .||

    I asked essentially the same thing a little earlier in the comments.

  • Ice Nine||

    Yes, you certainly did - simultaneously with mine as it turns out. You won.

  • ||

    Wait, from the way this is described, it is illegal for anyone under 18 to have sex. With anyone, no matter what age. Am I reading this right?

  • ||

    Oral sex too, according to section 288a.

    (1) Except as provided in Section 288, any person who
    participates in an act of oral copulation with another person who is
    under 18 years of age shall be punished by imprisonment in the state
    prison, or in a county jail for a period of not more than one year.

    However, California does have no age limit for marrying with parental consent, so I think that's an out.

  • kinnath||

    Same as Arizona. This was a contributing factor when I left the state with a pair of early teenaged kids.

  • kinnath||

    When I moved my family back to the midwest.

  • ||

    So this is just another fucking law that gives cops and prosecutors the ability to fuck with people for doing something they're going to do no matter what, up to and including ruining their fucking lives.

    Does anyone at all wonder why I'm an anarchist? "Rule of law" is a fucking joke.

  • ||

    the fault lies with the legislature. it's a stupid law. my state has a dumb legislature, but not THIS dumb, thus we have no such stupid law like this

  • ||

    I don't give a shit whose fault it is. I don't care if the boneheads in Olympia are "smarter" than these boneheads. It's a perfect example of how there is no "rule of law", but only "rule of man".

  • Jim||

    Also, please see my earlier comment. It takes two to tango: a legislature passing the laws, and other people enforcing them. Each is powerless without the other.

  • ||

    but police save lives and protect us while we sleep. or some feelgood shit like that.

  • robc||

    Three to tango- dont forget juries, this is a perfect situation for jury nullification.

    "The facts show that he clearly penetrated the victim. We find him not guilty."

  • Apogee||

    the fault lies with the legislature.

    You need a new excuse. Also, you never bothered to answer how it's possible for cops to let off other cops 'as a courtesy' when they're found breaking the law.

    It's a bullshit excuse to absolve yourselves of any blame, otherwise we'd never hear about arrest leniency within LEO circles.

  • Robert||

    Hey, this is one case where "fucking law" is a correct description!

  • Coeus||

    Wait, from the way this is described, it is illegal for anyone under 18 to have sex. With anyone, no matter what age. Am I reading this right?

    See my comment above.

  • SIV||

    I think only the most progressive states have the age of consent as the age of majority.

  • Zeb||

    Wait a minute. Is this actually saying that sex among minors is completely illegal in CA?

    And how the fuck are they going to prove that penetration was happening?

  • pmains||

    I'm guessing that the statute is written broadly enough so that it doesn't matter. Have to be tough on crime, dontchaknow.

  • johnl||

    Right. If his hand penetrates anything there he's not doing it the right way.

  • BoscoH||

    Probably with a high-tech model of a hand and fingers to simulate the 17 year old, along with a bowling ball and a skirt to simulate the 15 year old.

  • ||

    I can see the CSI scene now -- rubber model, computer graphics, a laser or two, and some techno music, and next thing you know, the crime is solved!

  • ||

    This is a good example of what happens to a society when the rule of law collapses under the weight too many laws.

  • Almanian||

    Also, fuck California.

    That is all.

  • IceTrey||

    Ummmm, Jacob the law you linked to doesn't say what you said it does.

  • Number 2||

    You are correct, Trey, cutoff age is under 14. Which makes this investigation all the more ludicrous because the girl in question was 15.

  • ||

    14 is the cutoff for "it's a felony." It's still a crime if the person is a minor, just not a felony.

  • IceTrey||

    Nevermind. It's under (h).

  • Number 2||

    "If someone tells us someone is having sex with a minor, it doesn't matter the age of the suspect, we're required by law to investigate. As much as we know that teenagers go out and have sex, we can't just overlook it."

    So that means, every time a teenage girl gives birth, has an abortion, puts a baby up for adoption, or simply appears pregnant, the San Bernadino sheriff is "required" to "investigate," because someone obviously was "having sex" with her?

  • The Virgin Mary||

    immaculate conception!

  • Richard||

    You really should know the difference between the Immaculate Conception and the Virgin Birth.

  • Pantera||

    Immaculate conception is when a chick gets knocked up by a Roman soldier that she banging behind her husband's back, right?

  • ||

    Hmmm could birthing fall into the category of 'penetration'? Perhaps we could convict all mommies and register them as sex offenders. Wow we would have everyone's name in the system before you know it....all visiting parole and paying up monthly......

  • GroundTruth||

    Hey legislators, cops and Mrs. Grundy: GET A LIFE!

  • Jamie Kelly||

    Where's the beaver shot?

  • Boss Hogg||

    Is there a link to the picture?

    I think we all need to take a closer look.

  • Ice Nine||

    Tread lightly. They'll be investigating you next for trafficking in child porn.

  • Unregistered Sex Offender||

    I did not realize I was committing a crime when I was 17 and fingered my 14 year old girl friend in the front seat of my Chevy.

    I can honestly say I would do it again.

  • Douglas Fletcher||

    You know she's not 14 anymore, right?

  • BoscoH||

    But your friends all thought you were a dork for having a 14 year old girlfriend.

  • Some Guy||

    If I were one of those kids, I would have at least called the ACLU before turning mine over to see if they were interested in fighting it.

  • Old Salt||

    Yeah, like your average California teenager could even spell ACLU!

  • cynical||

    If someone under the age of 18 can't consent to sexual activity, then isn't against the principle of mens rea for them to be charged for it?

  • np||

    This is one of the reason why the whole idea of setting the age of consent to 18 (as it is for most states) is utterly ridiculous. The world average is 15, and less many countries. They realize the nature of puberty, that whatever humans laws you set, you aren't going to change nature.

    So it just boggles the mind to be charged with statutory rape and registered as a sex offender (happend to a guy in 18 y.o Florida when he received a naked photo from his 16 y.o. girlfriend)

    In fact, why the fuck bother with sex education then in high school?

  • ||

    Why are they only charging the male here. They should be charging the female for the same crime. The boy was only 17.

  • Mike E||

    That is the first thing I thought.

  • Militant Feminist||

    Grown women are too stupid to think for themselves. We have to tell them what to think.

    Teenage girls? Pffffft!

  • Robert||

    Can't we all have that picture already? After all, if everybody's guilty, nobody is.

  • johnl||

    No. If everybody is guilty, everyone is guilty, except for unionized government employees.

  • jtuf||

    Considering that teachers give the kids instructions on having sex in health classes, the police should bust every Californian high school for accessory to statutory rape.

  • ||

    Considering that teachers give the kids instructions on having sex in health classes, the police should bust every Californian high school for accessory to statutory rape.

    RC likes.

  • ||

    On the bright side, the boy penetrating his date with his hand was at least trying to have relatively safe sex!

  • ||

    Laws that outlaw popular activities, such as smoking mj, teen boys feeling up teen girls, teen girls letting teen boys feel them up, consenting adults having sex in non-standard ways or positions, ad infinitum give prosecutors the ability to destroy lives at their whim. This is a very handy tool to use against political enemies or just to keep the general populace behaving out of fear of breaking some law they didn't even know existed. IT'S A FEATURE, NOT A BUG!

  • ||

    For the idle curious, google.images [Big Bear High School's 2011 yearbook] and you'll find a close-up of the image.
    * It racy but not really pornographic
    * It doesn't look like there's any "penetration" of any kind.
    * It looks like they were showing off for the camera.
    * The girl looks like a 20 year-old.
    * Persecuting these kids is a crime.

  • ||

    So is it also illegal to have pictures of a minor going through TSA screening?

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