An Imponderable Dumbness
FAYETTEVILLE, N.C. – With all due respect to state officials in famously intellectual jurisdictions like Arizona and Florida, a gaggle of dimwits working in service of the state of North Carolina recently conspired to concoct a confused soup of stultifying legal idiocy few can match (hopefully).
I say this being fully aware of the Arizona legislature’s track record of passing some of the dumbest, most clearly unconstitutional laws attempting to restrict speech ever to meet with a governor’s pen, and Florida’s track record of being … well, Florida.
In this case, the parade of stupidity began when sheriff’s deputies in Cumberland County investigated accusations of statutory rape at a local high school. In the course of their investigation, they examined a cell phone belonging to a male student who was then 16 years old.
While the cops didn’t find any evidence of statutory rape on the phone, they did find naked pictures of the teenager and his girlfriend, also age 16.
Keep in mind here, nobody so much as suggested the pictures at issue were non-consensual or being used for revenge porn by either of the teenagers. These were simply pictures they had taken of themselves and shared with each other. To the extent any “distribution” occurred, so far as anyone is aware, it was limited to the two of them.
There are valid reasons, one might argue, teenagers shouldn’t take and share these kinds of pictures, even when just sharing them with each other. These reasons include the all-too-real possibility the photos will wind up in the hands of others, and/or posted to the web.
It’s an entirely different and deeply, stunningly moronic thing, however, to charge two teenagers with multiple felony offenses for sexually exploiting themselves.
The real kicker: the two teenagers were charged as adults.
Let that sink in for a second. What it means, incredibly, is two teenagers were charged as adults for possessing and transmitting images of minors, when they are the minors in the images.
Compared to her boyfriend, who was charged with five counts of exploiting a minor (two for taking his own naked selfies, two more for transmitting them to his girlfriend and one for possessing an image of his girlfriend on his phone), the girl in the couple got off relatively easy: only two felony counts, one for taking her selfie and another for sending it to her boyfriend.
The good news, to the extent there can be any good news in such a ridiculous prosecution, is the pleas copped by the teens reduce the charges to misdemeanors. If they keep their noses clean, the state won’t exacerbate its already egregious error by preposterously adding the couple to the sex offender registry. It’s not a silver lining, exactly, but at least it’s not a scarlet one, right?
I could go on all day about the mindboggling stupidity of this situation, but instead, let’s hear from a few attorneys, academics, former judges and a key Florida legislator, just to take the temperature of the legal community on this case.
“Pretty much everything about this case is appalling,” said Mary Anne Franks of the University of Miami law school. “This demonstrates an utter failure to understand the nature of sexual exploitation. Consensual sexual activity among peers should not be a crime; we should not allow our social hysteria over teen sexual activity to justify prosecutions that will destroy teenagers’ lives ‘for their own good.’”
Attorney and author Fred Lane dubbed the prosecution of the teens “ludicrous,” “crazy” and “an overreach.”
“It’s dysfunctional to be charged with possession of your own image,” opined Justin Patchin from the University of Wisconsin. “I don’t think it should be a criminal offense where there is no victim.”
“The facts make no sense,” chipped in Ed Brady, a former North Carolina Supreme Court Associate Justice. “Could the boy look in a mirror at himself? What’s the difference?”
Good question, Mr. Brady. Are you sure you were a North Carolina judge, by the way?
So, how do the people who made the decision to push ahead with this senseless prosecution explain themselves?
“In North Carolina you are considered an adult at 16 years old as far as being charged, but to disseminate and receive sexually explicit texts, photos or videos, you must be over 18,” explained Sgt. Sean Swain of the sheriff’s department, who also suggested the problem is one of technology and culture, not the way in which officials like him decided to apply the law in this case.
“This technology and this problem that we’re having with this case, we don’t know where it’s going to go in five years when they apply for college,” Swain said. “We don’t know where these pictures are going to go. We’re more or less saving the kids from themselves because they’re not seeing what’s going to come down the road.”
Really, Sgt. Swain? You “saved” these teens from themselves by charging them with multiple felonies involving sexual exploitation of a minor?
All I can say is if ever this man decides to do me a favor, I sure as hell hope he gets second thoughts before acting on the notion.
Perhaps the prosecutor who pressed the charges showed a bit more accountability for the insanity he hath?
“The legislature makes the law; I enforce it,” said Cumberland County District Attorney Billy West, taking a well-worn page from the I Was Just Following Orders playbook. “The legislature has obviously criminalized the conduct, arguably at a more serious level than we resolved the case at.”
West’s rationalization for his clearly misguided prosecution is what we mere laymen call “bullshit.”
In fact, it’s so completely disingenuous, it makes me want to reach through the infrastructure of the internet and punch this asshole right in the throat. Does he really expect us to believe there’s no such thing as prosecutorial discretion, or that he was somehow legally compelled to stack felonies on these two kids?
To be fair, maybe the guy who wrote the law, State Rep. Paul Stam [R-Apex], will come to West’s defense. He’ll confirm this was exactly the sort of prosecution he envisioned in 1990 when the statute was written, right?
“That would seem to me not the thing that most prosecutors are elected to do,” Stam said (emphasis added) of West’s decision to prosecute the teens, adding he never intended the law to be used against young people taking explicit pictures of each other in the context of a consensual relationship.
What’s really at issue here has nothing to do with technology and very little to do with law. The explanation is pretty simple, really: Even in the context of a modern culture many pundits and critics complain about being over-sexualized, or “pornified,” when sex is involved in the equation, reason and rationality often get flung right out the window.
In this case, an understandable zeal to “protect teens from themselves” has resulted in an unfathomable situation, one wherein the victims and perpetrators of seven felonies are the exact same people.
It’s an absurdity that shouldn’t be possible under the law — and it can’t be tolerated as a matter of public policy.
It’s also something foreseen by criminal law experts, some of whom have long argued (pretty persuasively, in my view) minors should be considered a protected class when it comes to facing child pornography charges, in large part to prevent the sort of thing that happened in this case.
Sadly, not many states have adopted such a protective mechanism, meaning what just played out in North Carolina is bound to happen again, teenagers and technology being what they are.
In other words, it’s time to wake up, all you state legislators out there. If you really want to protect minors — not just from themselves, but from idiotic prosecutors as well — you have some work to do.
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