Lawmaker: Child porn law misused against sexting teens, but tools needed to fight predators

The North Carolina legislator who passed a law 25 years ago that made it a felony to possess pornographic images of minors said he would not have used it to prosecute two sexting Fayetteville teenagers who were charged with that crime this year.

“I would think normally as a matter of prosecutorial discretion you would not charge a minor with sending a minor — having her own picture or sending to another minor — (that) would seem to me not the thing that most prosecutors are elected to do,” said state Rep. Paul “Skip” Stam of Wake County, who also is a lawyer.

Stam’s legislation in 1990 created the felony offense of third-degree sexual exploitation of a minor. It was intended to crack down on people who sexually abuse and sexually exploit children, he said.

Both Fayetteville teenagers faced this charge for possessing sexually explicit pictures of themselves. They also were charged with creating child porn, which is second-degree sexual exploitation of a minor. The law against creating child porn was already on the books when Stam’s law on possession of child porn was passed.

Stam said his legislation was needed because the law against the creation of child porn was sometimes problematic to enforce. The victims, some of them traumatized young children, had to testify about how the pornography was created, Stam said. They often were reluctant.

Stam’s law against possession of child porn doesn’t require the victims’ testimony to enforce. The pictures or videos speak for themselves. It made it easier to obtain guilty pleas and convictions, Stam said.

Although the sexual exploitation laws have been tweaked over the years, most recently in 2008 to toughen their punishments and reinforce that exposure of the genitals can be prosecuted, they were on the books long before cellphones equipped with cameras became ubiquitous. They were in place long before large numbers of people began making nude photos of themselves to instantly share with their romantic interests.

The decisions by the Cumberland County Sheriff’s Office to charge the teens and the District Attorney Office to prosecute the teens for sexting outraged many people, who commented on the charges in social media and elsewhere. The case made national news in the past few weeks and generated headlines as far away as Russia.

On Tuesday, Cumberland County Sheriff Moose Butler said he didn’t necessarily agree with the use of felony charges against these two teens, but his deputies have to enforce the law as it’s written.

District Attorney Billy West has the authority to reduce or dismiss criminal charges. He said Friday that his office made the right decisions in this case. His assistant reduced the charges to misdemeanors in plea bargains with the two teens. The arrangement holds the teens responsible and punishes them for their acts, but should ultimately leave them with no convictions on their records.

“The legislature has obviously criminalized the conduct, arguably at a more serious level than we resolved the case at,” West said Friday. “Seemingly it would be that they did not think it was good public policy for these young people to be exchanging these sort of photographs with their phone.”

West wouldn’t debate the policy. “The legislature makes the law; I enforce it,” he said.

Some in the legal system are puzzled that the teens were charged with committing crimes against themselves.

“That doesn’t make a lot of sense,” said former N.C. Supreme Court Associate Justice Ed Brady, who practices law in Fayetteville.

Brianna Denson, 16, was charged with second-degree sexual exploitation of a minor for making a sexually explicit photo of herself and third-degree sexual exploitation of a minor for possession of her photo.

Similarly, 17-year-old Cormega Zyon Copening faced two counts of second-degree sexual exploitation of a minor for making two sexually explicit photos of himself, and two counts of third-degree sexual exploitation of a minor for possessing the photos.

Copening had an additional charge of third-degree sexual exploitation of a minor for possession of a copy of Denson’s photo.

Felony convictions could have put the youths behind bars, although a judge would have had the option to give them probation instead. But even if the teens were to avoid prison, a felony criminal record would have haunted them for the rest of their lives. Sex crime convictions would have required them to register as sex offenders for at least 10 years and possibly as long as 30 years.

Both teens agreed to plea bargains. Their charges were reduced to misdemeanors of disseminating harmful material to minors, and the two are serving 12-month sentences of probation.

Those charges are to be dropped when they complete their probation sentences next summer. They do not have to register as sex offenders.

If the teens had chosen to fight the charges of exploiting themselves, former state Supreme Court Associate Justice Brady said, their lawyers could have argued that taking a photo of yourself naked is no different than looking at yourself in a mirror.

“The facts make no sense – could the boy look in a mirror at himself? What’s the difference? He’s just recording his looking into the mirror,” Brady said. “That would be my argument to a trial judge.”

A defense lawyer could challenge the charges on constitutional grounds, said LaToya B. Powell, an assistant professor at the University of North Carolina School of Government. She is a former prosecutor and former state assistant attorney general.

The U.S. Supreme Court in recent years has said it violates the Eighth Amendment’s prohibition against cruel and unusual punishment to impose the death penalty or mandatory sentences of life without parole on youth under age 18. This shows that the high court decided it’s wrong to automatically treat youth under age 18 the same as adults in the criminal justice system, Powell said.

The teens’ dual status as minor victim and adult criminal in the sexting case could violate the 14th Amendment’s provision that every person must be treated equally under the law, Powell said.

If the teens are legally minors, their prosecutions as adults shows they are not being treated the same as other minors who happen to be younger than 16, Powell said. If the teens are legally adults, she said, then it’s unfair to use the law to prosecute them for making pictures of themselves when adults older than 18 may legally take sexually explicit photos of themselves, she said.

At least 20 other states have modified their laws since 2009 to account for teen sexting, the National Conference of State Legislatures reported in 2013.

Stam, the state lawmaker who passed the 1990 child porn law, wasn’t prepared to say whether North Carolina needs to change its law in light of the prosecution of the two teens in Fayetteville.

“I don’t know. I’ve gotten the information from you on one side, and not from other folks, so I will think about that,” he said.

Nonetheless, teens shouldn’t get carte blanche to make sexually explicit photos of themselves, Stam said.

“This is not a good use of the prosecutor’s time, or discretion, but you can’t make it so that it’s totally legal for 16- and 17-year-olds to do this because then the criminal gangs that are primarily involved in trafficking would just use 16- and 17-year-olds as their disseminators or as part of their operation,” Stam said.

Source: http://www.fayobserver.com/news/local/lawmaker-child-porn-law-misused-against-sexting-teens-but-tools/article_bff69e1f-de50-5bbb-b4a6-e003ff4efdd1.html