I've been meaning to blog about this case for a couple weeks, and here I am finally getting around to it. Sentencing Law & Policy and Appellate Law & Practice have the story about US v. Ortiz-Graulau. Berman described the case as such:
In this remarkable case, the 38-year-old defendant "carried on a consensual sexual relationship with a fourteen-year-old female." But that what got him in trouble: the "age of consent in Puerto Rico was fourteen at the time." Rather, the defendant's mistake was to take a few dozen sexually explicit pictures with his (too) young girlfriend. Though the defendant apparently never tried to sell or distribute these pictures — he was reported by the film developer at his local Walgreens drugstore — the First Circuit affirms his conviction (requiring 15 years in federal prison) because he technically took illegal pictures of his legal relationship. Our federal tax dollars at work.
This is what S. Cotus had to say:
The First Affirms a conviction under 18 U.S.C. § 2251(a) (“exploiting a minor for the purpose of producing the photographs.”) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (“exploiting a minor for the purpose of producing the photographs”) charge. Here is the twist: the relationship between the “exploiter” and the “victim” was legal under local law (they were not married, and “permission” would have been required to have legally wed. In fact, they lived together as a couple, and apparently took pictures of their activity as a couple. She just happened to be quite young. So, because this kind of relationship is completely alien to the judges and clerks of the First Circuit, it finds a away to affirm and send the guy to jail as a child exploiter for fifteen years....
Then, to show what distain the First Circuit has for private sexual relation that are not exactly vanilla, the First says:
Despite the language of the statute, Congress may well not have intended to make it criminal for a husband and wife to take intimate photographs of each other for their private use; this is so even if the instigator were twenty-one and the other spouse seventeen, thus falling within the plain terms of the statute's prohibition. If the government brought such a case, judges might seek to devise limits even on "plain" language; indeed, some judges have even suggested constitutional objections based on marital or consenting-adult privacy rights.
Wha? What? Is the First really saying that the language of the statute might criminalize the "right" kind of "dirty" conduct (i.e. where the girl is an "intern's" age and the guy is a "staffer's" age), but a judge must then step in and decide that Congress really didn't mean high-class kinkiness.
Sweet Jesus on a Popsicle Stick!
I guess I'm a little surprised at the surprise concerning this case. This oddity of a definitive child pornography age cutoff being higher than every state has always created these circumstances. And the many recent cases of teenagers being prosecuted for sending nude photos to each other via cell phones further illustrate this problem in differing ages of consent. In such situations, teenagers are free to have sex with each other as long as they don't photograph the activity. Ultimately, our system seems to assume that prosecutors will exercise discretion in the less egregious cases and decide not to press charges. However, once the prosecutor goes forward, I don't see how the courts can intervene to stop the process. And with our federal sentencing system, the penalties will be severe (although with child pornography, it is better than being a defendant in Arizona state court).