Photography Is a Crime: Illinois Supreme Court Upholds Eight-Year Sentence for Taking Pictures of Legal Sex


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.

The Illinois Supreme Court's decision is here. More on child pornography laws here

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  1. Sounds like the simple answer is to reconcile ‘child’ pornography with ‘age of consent’. If your age of consent is 16, then you can’t really be sexually corrupting someone when they’re 17.

    1. So why wouldn’t porn companies just flock to the state with the lowest age of consent?

      Indeed, if these photos were only for this guy’s private use, then how did anyone else find out about them? How did they get ided as these girls under 18? Especially as supposedly you can’t see their face or any identifying (well, public) features?

      1. One of the girls mentioned it to her guidance counselor.

        1. Oops change that…mother was snooping her daughter’s e-mail.

      2. So why wouldn’t porn companies just flock to the state with the lowest age of consent?

        I think that’s the real concern. Kids 16-18 may be able to consent to sex, but the law may have a rational interest around creating economic incentives in photographing it.

        1. Imagine THAT race to the bottom! States lowering the age of consent to attract the porn industry. Economic stimulus AND employment for teens, pre-teens, even children.

          1. Porn Industry: Hello Hawaii, here we CUM! Age of consent in Hawaii is only FOURTEEN years old. That’s right, 14. Creepers and pedophiles and panel van salesmen are abound in the islands of paradise.

      3. Because there are also laws against possession and therefor the majority of porn consumers would prefer their porn to only have present in their porn collections images they can be reasonably assured aren’t going to get them 3 – 50 years behind bars and a sex offender lable for life.

        Sure there would be some companies who went to the place with the lowest ages of consent to get the youngest girls but the majority would target the most common age because that is where the biggest audience is.

        And lets face it, anyone who tells you they can tell the difference between a 16 year old and an 18 year old just by looking is a liar. There are some 16 year olds who look 25 and some 18 year olds who look 14 so if the site wants to cater to those who like em especially young they will just go after the latter category rather than go somewhere where 15 or 16 is legal and drive off half their customers because it’s images are illegal to view or possess anywhere but the site’s hometown.

  2. ‘These concerns are exacerbated in the modern digital age’

    Public exacerbation should remain illegal. Disgusting!

  3. Well, whatever happens, this is just another sign that – at any cost – we shoul be sure that no one with a background in Illinois politics is never EVER elected to a prominent national-level office.

    Wait – what?

    1. please to be ignoring double negative above

  4. it may be counterintuitive, but it’s pretty obviously the law.

    a guy in a dept. i used to work with was mid 20’s and his gf was 16. we used to joke all the time he could schtup her, but he couldn’t film it.

    you can argue the law is stupid, but it’s about as CLEAR as any law on the books.

    again, the “message sent by illinois” is one that anybody , and CERTAINLY a cop/former cop should know.

    the sentence is of course draconian and ridiculous, as would be anything beyond “get this piece of shit out of my courtroom” but the WAR ON SEX ™ is a fail, just like the war on DV, and the war on (some) DRUGS


    the father will not face charges. DOUBLE STANDARD. if he wasn’t a cop, he would. oh wait…

    1. The double standard is about what a cop does while in uniform you disingenuous piece of shit.

  6. Memorialization of the sexual act makes permanent an intimate encounter that can then be distributed to third parties.

    An example.

  7. a two-year difference that resulted in a 15-year sentence for Rinehart

    And then only the agonizing one-year wait for his next girlfriend to turn 16…

  8. Well now why didnt I ever think of that dude. Wow.

  9. Omg. Something must me done about this. We must protect the scum that prey on teenage girls. Seriously? Sometimes I have to wonder wtf the point of some of these articles are. If he was under 21 maybe, but 32? All I can say is some dads can sleep a little better for about 15 years. Fuck that douchbag.

    1. The point is the law would have been the same had the “perp” been 19 and that 19 year old kid would be serving the exact same jail sentence.

      Further you are begging the question that either of these men was “preying” on teenaged girls who are above the age of consent. Would they have been “preying” on the girls if they were 18 instead of 16/17? how about 19? At what point do we expect the girls in question to be able/expected to take responsibility for their actions (since in neither case was there any coersion alleged).

      You might find a 15 year age difference to be “creepy and inappropriate” to quote the article but do you seriously think for one second that it deserves a decade or more behind bars and life as a pariah due to a sex offender label for the rest of your life after that?

    2. It’s a shame there are such anti freedom people in this country, but considering the socialist schools you went to it’s understandable.

  10. a former Indiana cop who was convicted of manufacturing child pornography

    So conflicted . . . .

  11. Concerning the ” creepy and questionable” in regard to the age difference, I just finished reading a James Madison biography where he at age 32 was being encouraged by a friends wife to marry a young lady of 16. Obviously not Dolley.

    The point being that one thing our statist schools have done is create unnatural generational groupings where those in the same age group do not interact across generations as they used to.

    So what at one time was not considered strange is now considered “creepy and questionable”.Merely putting this out for thought. And please, I’m not promoting pedophilia.

  12. The way child pornography laws are written a naked self-portrait can produce a creating child pornography charge.

    1. The problem, as I see it, is that many laws related to sexuality are treated like a website’s terms of service agreement (overly broad, but generally unenforced). The laws themselves are pretty clear, which is rare for the government, but they are not regularly enforced, instead seemingly reserved for the most “serious” violators.

      If we actually enforced all the sex-related laws on the books, most of those laws would be gone before you can say orgasm. Once you inform the average person about the level of intrusion in sexual matters allowable by law, they will undoubtedly be quite unnerved.

      Take, for example, California’s public urination law. If you are convicted of urinating in public, you get put on the sex offender registry. I haven’t met a single person who agrees with this law. And, in general, it seems to be rarely the case that people get convicted of this. But I’ve had a couple friends brought in and charged with this crime, and their experience was all the same: the prosecutor used the threat of the sex offender registry to get them to plea bargain to some ungodly amount of community service. That is just wrong.

      1. And it’s a slippery slope. Some day soon everyone will be charged as a sex offender.

  13. We all know our in-justice system is interested in anything but justice. It is about controlling us, the slaves, and extorting as much money from us as possible.

    A far cry from the reason that government was instituted. Does anyone remember why?

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