Ohio Teen who Sent Nude Pics of Self May Have to Register

A 15 year old Ohio girl, who is accused of sending nude pictures of herself to other youths, may have to register as a sex offender if she is convicted. From The Newark Advocate:

[The girl] was arrested Friday after school officials discovered the materials and brought in the school's resource officer for a police investigation.

After spending the weekend incarcerated, she pleaded deny Monday to both charges: illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony.

The child pornography charge for a convicted adult requires a Tier II sexual offender classification, but for a juvenile of this defendant's age, the judge has flexibility, said Jennifer Brindisi, a spokeswoman for the Ohio Bureau of Criminal Identification and Investigation.

"There's a part of juvenile section of Senate Bill 10 (Ohio's version of the federal Adam Walsh Act) that says if the child is a first-time offender and age 14 or 15 that the judge can decide not to make her register," she said.

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."

Licking County Prosecutor Ken Oswalt, who declined comment ahead of a written statement to be released today, had been visiting high schools in the county and educating teens on the consequences of such an action. Licking Valley High School was one of those stops.

During assemblies, Oswalt talked about the dangers, both in personal embarrassment and contribution to child pornography on the Internet.

He said in April his office had received about 20 cases involving questionable cell phone pictures. None were charged pending their adherence to a plan crafted with their families....

Brindisi said the Adam Walsh Act reduces much of the discretion allotted to judges in Megan's Law and transformed sex-offender classification to an offense-based system.

"It's pretty black and white," she said.

If she has to register, the case is another horrible outcome of the implementation of the mandatory registration system that eliminates common sense discretion by judges. Even the original prosecution for such a serious crime is suspect. However, the collateral effects embodied by the registration system under the AWA show the ridiculous results that will occur if the AWA remains law.

Update 10/14: I see that Orin Kerr at Volokh Conspiracy has picked up the story. I'm glad to see it is getting some more attention. Even though the fact pattern is relatively unusual, the case illustrates the larger problem of adopting one-size-fits-all mandatory legislative requirements instead of affording substantial judicial discretion in cases like this.

Comments

[KipEsquire]

Whatever happened to the principle that one cannot simultaneously be the perpetrator and the victim of the same crime?

[Corey Yung]

Hi Kip,

I saw that you posted about that same issue (in the child prostitution context) today. I hadn't posted about your post yet, but it is somewhat of a coincidence since that issue rarely comes up. It seems that in child pornography cases where someone takes their own picture and distributes it, the exception hasn't been applied. I think this is true for three reasons.

First, the exception has often been characterized that you can't be an accessory to a crime that you are the victim (ie the Lolita seductress can't be prosecuted as an accessory to statutory rape). It is unclear whether the exception applies when the principal is also the victim (probably because there are almost no crimes where that is possible).

Second, I can understand why the exception wouldn't apply since it would create a strange semi-legal market of kiddie porn. It would be illegal to possess it, but it might be legally available directly from the victim-source.

Third, there is also the notion that the child pornography victim isn't the only victim of the kiddie-porn because child pornography is more tightly connected with child rape (a similar relationship is more tenuous for adults). However, that last argument seems hard to square with the USSC decision ruling that virtual child pornography is protected speech.

I've been curious to see if any court had actually discussed the exception, but admit that I've been lazy in following up on it.

Best,

CRY

[Daniel]

My take is different. Would anyone be seriously discussing not having to register if this was a guy? I doubt that very much. I agree that these laws are bad, but what's worse than a bad law is a bad law implemented in biased way. The correct result is to get rid of the law, not to let the female off the hook.