Sex

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

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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.

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

    This sums up the problem with the citizenry and overzelous LEOs and Prosecutors.

    1. Those are the parents that will be on the jury. Therefore his comments and opinions do matter to a degree.

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

    I feel sorry for the little kid, having to go through life with a raging, infected asshole like that for a dad.

    1. 10 bucks says he’ll never figure out why Jr. has the dull, tired look of apathy when he’s scolding him for abusing small animals.

      Nah, who am I kidding, he’ll blame Emory.

    2. I feel sorry for the little kid, having to go through life with a raging, infected asshole like that for a dad.

      Feel sorry for freedom. There are many, many more parents out there that feel the exact same way as that dad. I think it stems from the same type of parental denial that spawns,”but my precious widdle angel would never do that/think that/ be associated with that.”

      1. I feel a lot like parents the way that I do corporations… they are just acting in what they think of as their own best self-interest. Without big government to enact their authoritarian lusts, there wouldn’t be much of a problem.

  3. What the fuck, _his_ lawyer is talking about a deal that involves jailtime for what amounts to video editing? Does this poor bastard have a legal defense fund? Where’s the ACLU on this one? Seems like the kind of thing that would be right up their alley.

    1. Agree. Get the ACLU in there. He should not be charged with ANYTHING.

      1. Except maybe a fashion citation.

        Two snaps down!

    2. ACLU? Any judge worth a shit should throw this case out as soon as it comes to him.

  4. 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?

    This is premised on the fact that somehow, injustice actually bothers said person. Looking at the state of voter apathy toward the criminal justice system (and downright antipathy toward the idea of rights of defendants, not to mention the War on Drugs, etc.), I’d say this is no longer a universally justified assumption.

  5. 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.

    Plead guilty to what? He didn’t do anything! There are NO material witnesses that he actually sang the song in front of actual children; he did not touch or fondle children, either. So I don’t understand.

    If pretending to sing pornographic songs to make-believe children is a crime, then ANY movie that shows sexual acts against children would have to be prosecuted.

    http://www.imdb.com/video/screenplay/vi3882614809/

    1. Welcome to Absurdistan.

    2. I was thinking along the same lines. Kramer vs. Kramer had a scene where the kid walks down the hall and sees Jo Beth Williams nude. Is that child porn? Was she naked, etc?

      1. Teachers had a scene where Jo Beth Williams ran down the hallway of a high school nude. I’m seeing a pattern here.

    3. This is the same plot as Taken .

    4. There ought to be a word for this

  6. Jesus Christ, is this an insane country or what? And you know what? Because it involves children in some tangential way and sex, though not actually together, people will accept it as just and fitting. It’s simply beyond belief. I just wish people would stop pretending and kidding themselves that this is anything like a free country. This guy is being prosecuted because he has offended people’s sensibilities. Jesus Christ, I hate this place. Unfortunately, this is the best the world has to offer.

    1. I dunno. Reading most comments on news sites, most people in this country think the charge is extreme. Most don’t even think he should get anything more than 30 days in jail.

      1. He should get ZERO days in jail.

        1. The prosecutor should get 30 days in jail.

          1. (To prosecutor)

            So, what ya in for?

  7. Not sure if Michigan follows the ABA Model Rules for legal ethics, but the first friggin’ ABA ethical rule for prosecutors is (3.8) “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

    I know why they don’t, but goddammit, the State Bar needs to start yanking the law licenses of lawyers that pull this crap, and things like that judge in Tennessee let slide in Balko’s latest nutpunch. Even if you can’t throw them in jail or take their stuff due to prosecutorial/judicial immunity, they’ve shown through their behavior that they need to be in another line of work.

    1. In principle, I agree; however, in degree, I would go much further. The judge who permitted the Tennessee fraud should face severe criminal sanctions, pershaps life. This prosecutor should also face severe criminal sanctions, perhaps life.

      When we start to hold public sector actors accountable for their misdeeds, we will see much less of this nonsense.

  8. The word “depict” really troubles me here. Does this mean that SouthPark has violated child porn laws?

  9. Fucking Michigan – way to suck again.

    *facepalm of shame*

  10. If you consider a punishment unjust, doesn’t that mean it troubles you, by definition?

    I think the reason libertarian arguments about this sort of thing are unpersuasive, ineffective, or just absent from the actual working discourse of “justice,” is because the lizard-brain appeal of law and authority?to those who wield it, if only vicariously, and to pretty much anyone it’s not being wielded against at any given moment?is in its illegitimacy.

    The motivation to sustain an unironically named justice system just doesn’t exist. Because…lizard people.

  11. Witch. Wiiiitch!

  12. You’ve got to be kidding me.

    A guy makes a funny youtube video and gets charged as a child pornographer?

    1. I never saw the video, but all this controversy is making me wish I could find it somewhere.

      1. Yeah, I’m looking for it.

        1. It was probably taken down due to his using the images of children essentially without consent (since he did so under false pretenses).

  13. We need new words to describe this level of assholery.

    I’m willing to submit “tague”, meaning “an asshole who plumbs new depths of assholery”.

    1. I thought we had agreed to use the term “pulling a Chony.”

      Actually, I just made that up but I think it should stick.

  14. I’m going to turn in my Reasonoid card here for a moment and defend the prosecutor: He had to charge this kid.

    Yes, I know that technically, he did not have to. But after that video, you know his office was being deluged every day from parents with way too much time on their hands and way too little sense. Believe me, I grew up in a fairly affluent community where no one’s precious angel could do anything wrong, and where people had moved away from the big city to protect their kids from everything from scraped knees to porn (it was more WASP-y than evangelical, tho).

    In a country where prosecutors are elected, you are forced to try dumb, busy-body cases that come along, because voters want you too. It’s an extreme case of the classic “There oughta be a law” syndrome.

    Seriously, if this prosecutor doesn’t go after this case, his opponent runs an ad next cycle saying that he’s a child molesting pervert for not taking this case. Every asshole parent who calls in doesn’t vote for him, and neither do their friends or family.

    Honestly, the problem isn’t just with electing prosecutors, but in how that profession must be evaluated: There is no quantifiable metric of how much a prosecutor respects the rights of defendants, or pursues “reasonable” charges. There is conviction rate, and high profile cases. And just as these factors create corruption in unelected policemen, they do the same in prosecutors.

    1. But after that video, you know his office was being deluged every day from parents with way too much time on their hands and way too little sense.

      Go back and find the original H&R blog entry on this story.

      It gave a nice fake quote of what the prosecutor SHOULD HAVE said to all those people. Essentially, “yes, this kid did a stupid thing. It was crass, vulgar, tasteless, in poor judgment and offensive to any parent. But there is no law against exhibiting poor judgment or engaging in tasteless humor. And in fact, his video clearly is protected by the First Amendment. As no children actually were exposed to his vulgar and crude lyrics, no children were harmed in any way whatsoever, and his video did not contain even a depiction or simulation of a child engaging in a sex act, I cannot legally charge him with any crime.”

      That is the choice the prosecutor had.

    2. I hear what you’re saying, but akin to what BSR said, a prosecutor swears to uphold justice. If that means he gets kicked out of the public sector next election, so be it. And besides, I have it from my progressive friends that he’ll make waaaaay more in the private sector anyway. So it’s a win-win.

      1. No, the prosecutor did not have to bring any charges. Again, under the present circumstances, filing the charges against Emory constitutes a crime. The prosecutor should be charged and subject to ruinous money damages.

        1. You must have misunderstood me. That was my point, he shouldn’t have brought any charges, even if it costs him his next election.

        2. Thanks for bringing your POV to the table, mike. I needed a chuckle.

          Now, do your Lincoln bit.

    3. AU H20, if you are not playing devils advocate you would need to hand in your card. A personal career of satifying crybabys who don’t pay attention to the facts can not outweigh reality based justice.

  15. We are now at war with Eastasia.

    1. Wrong. We have always been at war with Eastasia.

  16. “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?”

    This is where the marginalization of libertarians meets the marginalization of “bleeding heart liberals.” Both Sullum’s reasoned (no pun intended) comment and the old caricature of leftist favoritism of “defendants over victims” stress the process of law rather then the urge to punish. The lack of civil (as opposed to economic) libertarianism’s appeal can be attributed, in part, to a perceived lack of empathy for victims — the same complaint that has been made about liberals (see Mike Dukakis). Liberals had (I use the past tense because most in-office liberals have abandoned strong pro-civil justice stands to get reelected ) it doubly bad, not only did we not empathize with the *right* people, we empathized with the *wrong* people — which is even worse.

    1. Who are the victims here, please?

      1. Note: I do not agree with the prosecutor. However, if you were videotaped under the pretense of someone doing a documentary on libertarians, and then it turned out you were being used in a Michael Moore-esque attack on libertarianism, you’d probably be pissed, and you’d probably want the video removed.

        Which, with perhaps a fine, is the extent of what should happen in this case.

        1. “” you’d probably want the video removed.””

          That reasonable. Trying to impress the voters with your anti-childporn stance and charging the kid with a crime is not.

    2. The rap on 70s/80s liberals (and frankly it’s a just one) was that they bent over backwards for defendants post-conviction, and set up so many roadblocks to prosecution that it became difficult to convict even clearly guilty defendants. That’s not the issue here.

      Your disarming of law-abiding citizens and zeal for prosecuting those who defend themselves from attackers (apparently the only prosecutorial zeal you liberals could muster) didn’t help either. Blow.

      1. How does Emory defend himself against Tague?

        1. The kiddie porn charges are so laughable they’re going to be dismissed before it even gets to the grand jury stage. And the guy deserves some punishment for getting permission to film minors under false pretenses. Perhaps not criminal charges but certainly a civil suit (as well as being fired and never being able to teach again).

          1. the guy deserves some punishment for getting permission to film minors under false pretenses

            Is that a crime?

            I honestly don’t know.

  17. I wonder how that outraged daddy would react if a prosecutor tried to send his kid to prison for twenty years for underage drinking?

    “Just because this is a minor crime doesn’t mean he won’t go on to commit more serious ones later. It’s pretty well established that teen drinkers go on to become rapists and serial killers later in life, so we should just toss him in the clink and throw away the key.”

  18. Didn’t the Supreme Court strike precisely this type of charge down already in Ashcroft vs. Free Speech Coalition?

    The Michigan statute is trumped by the court’s ruling. Unless I’m missing something it would seem this guy has a poor lawyer if he’s considering any type of plea other than go eff yourself.

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

    Was my child actually exposed to this guy’s naughty lyrics? No.

    Was my child actually injured or harmed in any way whatsoever as a result of this guy’s silly video? No.

    Do I engage in any rational thought process? No.

    1. I suppose you’d be OK if a comedian taped you laughing at wholesome jokes at his performance (which you gave permission for), then went back and edited it so it appeared you were laughing at horribly racist jokes, and finally posted it to YouTube.

      1. So you’re equating me being pissed with a criminal act?

        I don’t see how whether I would be “ok” with it has anything to do with whether it’s a crime.

        Would I be miffed that he made me look like a racist? Yeah, sure. Would I be calling for him to go to prison for 20 years? Fuck no.

        Don’t so blatantly disingenuous.

  20. Title fail. Where did the prosecutor admit that the charge was unjust and inappropriate? You only quote a kid’s father as saying that.

  21. What I want to know is whether any of the kids have actually seen the final product, or if all of the parental outrage about this is purely theoretical. I mean, no one is saying that any kids were actually subjected to the offensive material, or really harmed in any way. SO what the fuck are they complaining about? If anything, they should be complaining to the school for not properly vetting people who they have come in to perform for students.
    Regardless of the answers to any of these questions, the guy should not be charged with anything.

    1. I’m sure the kids were reacting in some way to the song he was actually singing at the time of filming. If some douche posted a video of my first grade offspring clapping or smiling to a sexually graphic song, he’d have hell to pay.

      By the way, that’s a possible charge — Balko’s article said he got permission to use the original video as part of a job application or something, not to post it to YouTube.

      1. What would he be charged with? I’m no legal expert and I’m genuinely asking. I was trying to think of what other charge he could reasonably be hit with, but could come up with nothing. Is lying to elementary school administrators really a crime? Because that is all he is guilty of, regardless of how you might react as a parent.

      2. Why are you so hell bent on finding some crime to charge this guy with? Either what he did constitutes a violation of the law or it does not. The prosecutor damn well better know the difference.

        Is it offensive? Yeah, if you’re on of the parents. Is it stupid, poor judgment, etc.? Sure.

        But is it criminal? I doubt it.

        Show us the law he broke.

    2. What I’d be complaining about is someone taking my kid’s likeness and portraying them in a false and negative way. That is wrong. But this charge is innappropriate.

      1. Sure, but is that a crime? Forcing him to take down the video from wherever it was posted would seem quite reasonable, but if there were actually a crime he could be charged with for doing so, I would imagine that the prosecutor would pile that on top of the child porn charge.

        1. I’m betting it is not a crime or he would have been charged with it, likely in addition to this charge (prosecutors like to pile on charges). I think the current charge is absurd. I’m just saying that a false light/appropriation civil suit would be in order and I’d be ok with some criminal statute covering this (but one with a much, much milder potential sentence).

          1. False light? Like a sting operation?

      2. What about the stock photo of the kid used to illustrate the magazine article about juvenile masturbation? What about Ali G?

        I bet the fine print of the release covered everything.

  22. I think the proper remedy here is some kind of ‘false light’ or appropriation of likeness suit. I’d also be ok with some kind of misdemeanor criminal equivalent of those actions. But this is senseless…

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

    Edgy comedy gold.

    Takes Emory’s sense of humor and doubles down.

  24. Didn’t SCOTUS just have a say in a similar matter?

  25. This post combined with the prison rape post sums up the situation. If the singer had raped prisoners instead, no one would have cared.

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