The Volokh Conspiracy

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When you can legally have sex with a 17-year-old, can you be prosecuted for possessing lewd nude photos of her?


From Commonwealth v. Kushmanick, which was decided last year by a Pennsylvania appellate court, but which I just came across last week (all quotes are from the opinion):

1. The facts: Kushmanick started dating S.C. when he was 18 or 19, and she was 16 (according to defendant, just a week shy of her 17th birthday). The age of consent for sexual activity generally in Pennsylvania is 16. (There is the possibility that someone may be prosecuted for "corrupting the morals of a minor" when the minor is 16 or 17, but this was not an issue raised in this case.)

As part of their relationship—according to Kushmanick, after S.C. turned 17—he would photograph S.C. naked. "The photographs depicted S.C. naked in a blatantly sexual way. However, the photographs also graphically establish that S.C. was a willing and voluntary model." Her face was apparently not visible on the photographs, but she recognized them at trial because of various items of clothing and linens they depicted.

"When the relationship ended between the parties, S.C. asked [Defendant] to delete the photographs from his cell phone." Kushmanick didn't do that, but he apparently never displayed the photographs to anyone else.

2. The prosecution: In late 2013, a police officer got access to defendant's phone (with a warrant) "as a result of an unrelated investigation" and found the pictures, which led to the prosecution of defendant for creating and possessing child pornography. Defendant was convicted and "sentenced to 18 months of probation" but was also "classified as a Tier III offender … and thus subject to the lifetime registration requirement." The relevant statutes provide:

(1) Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed.

(2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense…..

… Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

"Prohibited sexual act" is defined as various sexual acts or "lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." The definition does not include any requirement that the act be criminal independently of its being recorded.

3. The majority decision:

[W]e agree with [Defendant ]that the conduct at issue herein is not of the type which the legislature intended to punish. "The purpose of Section 6312 is plainly to protect children, end the abuse and exploitation of children, and eradicate the production and supply of child pornography." The facts of this case do not establish abuse or exploitation of S.C., or that Defendant's actions led to the supply of child pornography. [Footnote: Indeed, the only record evidence of dissemination of the pornography at issue is the Commonwealth's production of it at trial.]

Here, Defendant and S.C. were permitted by law to engage in sexual activity. Thus, the acts depicted in the photography on Defendant's phone were not "prohibited sexual acts" between these parties.

In view of these circumstances, and the maxim "Cessante ratione legis cessat et ipsa lex" ["When the reason of the law ceases, the law itself also ceases"], we conclude that the reasons behind subsections 6312(b) and (d) are inapplicable to the photography in this case. Therefore, … we reverse [Defendant]'s convictions.

4. The dissent, by Judge Mundy:

The Majority does not conclude the Commonwealth's evidence is insufficient for a failure to satisfy any of the elements of sexual abuse of children. Likewise, the Majority does not dispute that neither lack of consent, nor dissemination is an element under [the statute]…. Rather, the Majority deems the Commonwealth's case legally insufficient because of the maxim cessante ratione legis cessat et ipsa lex. This maxim has never been applied to void an otherwise legally sufficient criminal conviction.

[In the words of the trial court,]

[Defendant]'s argument has equitable and common sense appeal. Unfortunately, his arguments are not legally cognizable. [does not distinguish between consensual photographs taken by two adventurous, experimenting teens and photographs created by sexual predators for the pedophilic gratification of themselves or others. While certainly ironic, the fact that [Defendant] and S.C. were legally permitted to engage in sexual activity is not a defense [under the statute].

… It is not the role of the judiciary to change the law. Rather, any changes to [the statute] must come from the legislature….

[Footnote:] The Majority appears to equate "prohibited sexual act" in [the statute] with a criminal act. However, [the statute] defines the term "prohibited sexual act" as "[s]exual intercourse …, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." The statute therefore does not depend on the legality or illegality of the underlying act, rather it depends on depicting a child under the age of 18 engaging in any of the listed "prohibited sexual acts."

5. The precedent: Neither the majority nor the dissent cited State v. Kitchen, a similar 2002 Pennsylvania appellate case (which was affirmed without opinion by the Pennsylvania Supreme Court in 2003). Here was the argument of defendant's lawyer, Elizabeth Judd, distinguishing Kitchen:

The victim in [Kitchen] testified:

[S]he was a sixteen years of age when she moved into Appellant's apartment where the two lived together for about eighteen months. She testified that during those months, Appellant photographed her over sixty times in sexually explicit poses despite the fact she was under the age of eighteen. She admitted that while they were living together she and Appellant had a child, and Appellant continued to take photographs, before, during and after her pregnancy. A number of photographs were introduced into evidence, which the victim retrieved from the Walmart Store where they had been developed. She also testified that she and the Appellant had argued about other sexually explicit photographs which he had taken, kept and refused to return.

The defendant in Kitchen, whose age was not disclosed, argued his relationship with the minor should preclude a conviction. He focused on the principle that a minor may consent to sexual intercourse with an adult. The Court rejected the argument and affirmed the conviction. [The] circumstances [of the Defendant in this case] are distinguishable. He was a peer of S.C., never allowed the photographs to be seen by any other party and there was never a dispute with the involved minor about the photos. His inexperience of youth prevented him from making a sound moral judgement. His intentions were motived by a sense of sexual experimentation with a peer not a pedophilic desire, which is the activity the Legislature intended to address.

(For another interesting Pennsylvania child porn case, see Miller v. Skumanick, which dealt with a threat to prosecute minors for possessing suggestive photos they took of themselves; but that case was not brought up either in the opinion or in the briefs.)

6. The policy: In my experience, many people have the reaction, "If you can have sex with each other, you should be able to photograph each other having sex (or just naked)." That's a perfectly sensible reaction; after all, if 16-year-olds are allowed to consent to activities that can cause pregnancy and disease, why not let them consent to mere photography as well? But I thought that I'd also lay out how the policy argument might go in favor of criminalizable photos of under-18-year-old sex partners even if actual sex with the partners is legal, just so readers can consider it:

A. Under-18-year-olds are too immature to consent to actions that could cause them serious long-term harm. That might be a good reason to ban people from having sex with them (which can cause pregnancy, disease and serious emotional pain in the event of a breakup). And it is a good reason to ban people from photographing them naked or in sexual contexts (which can cause humiliation if they are publicized and can be used for purposes of extortion).

B. At the same time, trying to shield under-18-year-olds from such harms also interferes with their liberty; we might therefore allow them to engage in dangerous behavior at some age below 18, in order to diminish this interference. We might let them use deadly devices (such as cars), which may be important for work and education. We might let them engage in deadly activities (such as sex), and free others to be partners in such activities, when such activities may be very emotionally important to them.

But when an activity is dangerous but less important (such as sexual photography), we can reasonably tell them (and their prospective partners), "Want to have your boyfriend take sexual pictures of you? Fine, but just wait until 18, when you might have a more mature judgment on the matter." Indeed, maybe this might help the under-18-year-olds avoid pressure to engage in such behavior when (as often happens) they would consent but against their better judgment.

C. Likewise, trying to ban behavior that is extremely common, especially when experience shows that total bans are extremely likely to be regularly flouted (perhaps because under-18-year-olds might so want to engage in such behavior), can cause various problems—disrespect for the legal system more generally, wrongly selective prosecution, overcriminalization and so on. That may be good reason to set the age of consent at some age below 18 (as indeed three-fourths of all states do). But sexual photography isn't likely to be as common, or as resistant to regulation, as sex itself, so a ban on sexual photography of under-18-year-olds may still be sensible.

So I think it's not outright irrational to set up a higher age of consent for sexual photography than for sex (even though the potential harms of sex are indeed greater than the potential harms of sexual photography). Query, though, whether this still makes sense—and what the right punishment for such sexual photography ought to be. (I do think it makes no sense to require registration as a sex offender for this behavior, especially if the defendant is close in age to the partner; the point of registration is to better monitor people who may commit serious sex crimes in the future, and that just doesn't seem likely as to such close-in-age sexual photographers.)