Last year Radley Balko described the case of Eric Rinehart, a former Indiana cop who was convicted of manufacturing child pornography based on video and photographs of two teenagers with whom he was having sex. Although both girls were above 16, Indiana's age of consent for sex, they were below 18, the federal age of consent for appearing in sexually explicit images—a two-year difference that resulted in a 15-year sentence for Rinehart. A recent decision by the Illinois Supreme Court hinges on the same sort of difference in ages of consent, and the incongruity is even more striking because in this case both ages were set by state law.
At 32, Marshall Hollins had a 17-year-old girlfriend—creepy and questionable, you might think, but perfectly legal in Illinois, where the age of consent for sex is 17. Yet because Hollins took pictures of himself having consensual sex with his perfectly legal girlfriend (for their own private use, both of them said), he was convicted of three child pornography offenses and sentenced to eight years in prison under Illinois law, which says people cannot agree to appear in such images until they turn 18. That distinction makes no sense, Hollins argued in his appeal, because the ban on child pornography is aimed at protecting minors from sexual exploitation. But last Thursday the Illinois Supreme Court rejected Hollins' due process and equal protection arguments, saying "there are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity." While 17 might be old enough to have sex, the court said, allowing the event to be photographed entails additional risks that arguably require another year's worth of maturity and wisdom:
Memorialization of the sexual act makes permanent an intimate encounter that can then be distributed to third parties. These concerns are exacerbated in the modern digital age, where once a picture or video is uploaded to the Internet, it can never be completely erased or eradicated. It will always be out there, hanging over the head of the person depicted performing the sexual act.
As dissenting Justice Anne M. Burke noted, that argument does not apply in this case, since "all five photographs [taken by Hollins] are extreme closeups of the couples' genitals," including neither faces nor "visible identifying marks such as scars or tattoos." Burke argued that United States v. Stevens, the 2010 decision in which the U.S. Supreme Court overturned a federal ban on depictions of animal cruelty, clarified that bans on child pornography are consistent with the First Amendment because the acts recorded by such images are themselves illegal. If so, she said, the pictures taken by Hollins do not qualify for this First Amendment exception.
In any event, the message sent by Illinois—feel free to have sex with her; just don't take any pictures—is counterintuitive, to say the least, and it is patently unjust to impose an eight-year prison sentence for an impulsive decision to take out a cell phone and press a button while engaging in otherwise legal behavior.