When the story of the 15 year old girl from Licking Valley High spread around the blawgosphere, it seemed like just another goofy story that we share for its shock value. I first saw it when Turley posted about it, where he commented:
This seems a lot like charging an attempted suicide as an attempted murder.
She may have to register as a sex offender, though it is unclear whether (as both the victim and the culprit) she would get victim notification reports about herself.
Other than to point out its absurdity, it was no more than a curiosity. But the full story from the Newark (Ohio)Advocate via Don’t Tase Me, Bro!, leads me to be more concerned. Not so much for the monumentally stupid and infantile act of a young girl publishing a nude photograph of herself to other youths, which is a matter for parents and a competent therapist to address over a lengthy period of time, but for the reaction of this Ohio legislator:
State Rep. Jay Hottinger, R-Newark, wrote the state’s Megan’s Law bill, the predecessor of the Adam Walsh Act, and said this case was not something the legislature envisioned.
“Clearly it was in an illegal act,” he said Tuesday. “Clearly it was an unacceptable act, and there needs to be consequences from that, but we need to make sure the punishment is a reasonable punishment.”
One the one hand, Hottinger says this was not the conduct the legislature had in mind when it enacted the law, yet on the other hand he states that it was clearly “an illegal act” that requires punishment. Oh no you do-on’t.
Raising two independent problems, and two problems that create a synergistic third, this can’t be ignored. First, the failure of legislation to be sufficiently clear as to encompass only those acts that the legislature specifically intends to make illegal reflects a failure of the law, not those caught in the net of unintended consequences. The point is that there should be no “accidental crimes.”
Secondly, Hottinger’s knee-jerk reaction is that this conduct is “clearly . . . an illegal act.” And why would it be illegal, no less clearly illegal, if it was never envisioned as a wrong by the Legislature? Because it fits within the words? Then the words are bad, not the act. Because it just feels wrong? Maybe some remedial legislating courses should be offered in Ohio. When you’re charged with crafting legislation and face a situation that is encompassed in the language of a law that was never intended, it’s something to fix, not use for mindless political capital.
I would like to think that this situation is an anomaly, but having teenage children of my own, and they’re having teenage friends of their own, I know differently. There is a swelling desire for fame on Youtube these days, where a video can bring overnight recognition and make someone “important” a la Paris Hilton (without the trust fund). Nude photos, videos of a sexually explicit nature, are unfortunately not a surprise. Some of the dumb things that show up on Youtube will make you seriously wonder just how stupid children can be.
This is not a criminal problem, and to the extent it’s subsumed in a poorly drafted law named after one child or another, doesn’t become a criminal problem. This is a self-esteem problem that has grown from the constant barrage of overnight celebrity for nothing more than being more foolish than the next kid.
Why, then, does Hottinger assume that it must be criminal, it must be subject to punishment? The trend to seek answers to all problems through the criminal law is monumentally dangerous, particularly when it involves children. The product is that the forces that are pushing kids to engage in this destructive behavior will not be effectively addressed, both on their end as well as society’s, while creating a new class of unintended criminal out of our own children.
When this story filtered up to Orin Kerr at Volokh (it took a while), I would have expected some biting libertarian commentary. There was none. Are we that inured to the misuse of criminal law to cover unintentional conduct, aberrant behaviors or anything where the word “nude” and “child” is used? Have we lost all concern for the underlying purpose of criminal law? Have we lost all concern for our children?
Sure, this was a bizarre story when it first appeared, but the problems it raises are “clearly” worthy of greater thought than the coverage has suggested.
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Yup. It’s bizarre. I understand why folks — including prosecutors — would want to discourage young girls from doing this sort of stupid thing (among other reasons: once the bits go out, they don’t go away), but prosecution doesn’t exactly make a lot of — well, any — sense.
It’s one of those things, like certain sorts of statutory rape*, where the right thing to do is say, “this isn’t a legal issue, so I’m not going to prosecute it.”
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* I don’t know what the deal is now, but back when I was a kid in CT, my understanding was that it was possible for two consenting individuals to have sex on three consecutive days, and for it to be statutory rape on, and only on day two (if the boy was one day older than the girl).
Far as I know, there were never any prosecutions on that sort of thing, but there was a flurry of concern, at one point, among a few couples at my high school when some mischievous fellow pointed that out.
Kerr didn’t say much, but the comments suggest some interesting examples of taking the theory to its limits. For example, if the 15-year-old girl has sex with a 20-year-old partner, can she be charged as an accomplice in the statutory rape? Conspiracy maybe?
And what about the kids she sent the pictures to? Couldn’t you charge a 14-year-old boy for possessing child pornography featuring a “child” older than he is?
The girl should have just gotten each boy alone and had sex with them. It would have been much less trouble in the long run…
Just spotted this paragraph in the main story, showing off some more legislative genius: “The section of the law the girl, who is a foster child, was charged with allows parents or guardians to take photos of their unclothed children for a list of acceptable purposes but does not provide an exemption for the child themselves.” (emphasis mine)
I generally don’t find the comments on VC particularly helpful. Rather than have some fun by playing the “logical extreme” game, it would have been nice for someone to have some thoughtful comment.
And no, having sex with each boy alone is not a better solution, coming from the father of a teenage daughter. Need I explain the risks/problems involved?
I guess you have a higher quality standard than I do when it comes to comments, although you did ask for biting libertarian commentary, and I think the parade of horribles counts.
My apologies if I offended. Not having children, I really can’t imagine what sort of feelings this stirs up for you. I can only guess how I’d feel if I did.
Obviously the best solution would be if my daughter behaved herself and believed in herself enough that she didn’t feel the need to make boys like her through wanton displays of sexuality.
But if we’re only comparing the options of being promiscuous or being a prisoner, I think I’d rather she was promiscuous, because that’s something she could stop whenever she really wants to. Prison is a little trickier.
(Although it doesn’t look like this girl is going to prison, but I think she’s going to have a felony record.)
I don’t know. I only know one person who’s been in prison, and he never talks about it. You have a daughter and you know a lot more convicts. I’m sure you have a better idea which is worse…although I’m guessing it’s not a subject you enjoy thinking about.
Of course I have a higher quality standard. I have people like you commenting, which I very much appreciate. I take no offense, but feel that this young lady’s need for acceptance and recognition needs to be addressed in far better ways. She’s not looking for sex. She’s looking for acceptance. She’s just looking the wrong way.
*who is a foster child* …
If I were the law enforcement involved, I’d be more interested in calling Child Welfare to find out whether this girl has been molested and lining up appropriate psychiatric care for her than in prosecuting her. Inappropriate sexual behavior is a common side effect of a girl-child being molested, and unfortunately our foster care system here in America is a disgrace and it’s been estimated that up to half of the girls who “graduate” from the system have been molested at one point or another during their tenure in the system.
But it’s always easier to just prosecute the victim. Saves us having to exercise our conscience about how we treat the least and most vulnerable amongst us. Gotta make sure we feel good about ourselves, after all, because feeling good about ourselves is our national religion. USA! USA! We’re Number One! WOOT!
I didn’t say much because I thought the story pretty much spoke for itself.
By the way, Scott, be sure to let us know how much of a traffic increase you get over the next few weeks from people looking for naked children. I wrote something about a high school that forced a girl to strip for a drug search last spring, and people still visit my site every day looking for illegal stuff.
In fairness, I thought it was nothing more than an absurd curiosity at first as well.
I’ll keep an eye out, but suspect that anyone looking for naked children here is going to be very disappointed.
“I know the feeling,” said the owner/operator http://sexwithflaminggoats.com .