Can you be revictimized if you were never victimized?
by: Ryan • December 1, 2013 • no comments
In my previous post, I touched on the fact that -- under current law -- the children depicted in child porn videos are "victims" every time the videos are watched (the crime being Encouraging Child Sexual Abuse or "ECSA"). Well, maybe not anytime. Only, presumably, when they're watched with a sexual purpose. So jurors, prosecutors, judges and detectives are not adding to the victimization when they view the pictures out of professional necessity. This would create a whole host of abstract conceptual problems with whatever it means to be a victim (is your victimhood status suddenly turned on when the prosecutor is, um, turned on?), but I'll save that for the legal philosophy blog.
Anyway, the case law says that when the videos are watched, or downloaded, the children are "revictimized." That's the word used by the Court of Appeals. (I have, as previously noted, argued that the former children must still be alive when the pictures are viewed for that to remain true, even accepting the premise. That argument isn't relevant to this post.) Now, hold that thought about revictimization for a moment.
The Court of Appeals has also said -- in denying a challenge to the constitutionality of Oregon's child porn statute -- that it simply does not matter if the pictures and videos were taken in a jurisdiction where the sexual acts were legal. So, for example, if a 17 year old has intercourse in Vancouver, WA (or, for that matter, Vancouver, BC), the sex is legal (as it would be in most of the individual states. But a photo of that intercourse, which, say, is on the phone of one of the participants, is texted into Oregon, it is now child porn.
Every time that photo is re-texted, the texter is looking at a presumptive prison sentence of 16-18 months, even if he or she has no criminal history. Sexual arousal is irrelevant to the crime of ECSA in the first degree. But again, ignore that fact. Instead, note that according to the COA, the minor in the photo is "revictimized" every time the photo is looked at. But revictimization depends on the claim that the photo is a product of sexual abuse. As we note above, the photo was not the product of sexual abuse. It was the product of perfectly legal sexual activity in the state of Washington.
There used to be a statute that served as a defense to the possession of child porn if the defendant reasonably believed the photo was legal in the place it was taken. The Oregon Supreme Court wisely relied on the existence of that defense when upholding the child porn statute. The OSC has not revisited the issue since the statutory defense was repealed.
The COA -- adopting the position of the AG's office -- says that that defense is not necessary to upholding the constitutionality of the statute. It doesn't matter that it wasn't child abuse at the time sexual acts occurred. The reason for this is -- and I'm simplifying a bit -- it is still child abuse in Oregon. And it's ultimately Oregon that defines what constitutes child abuse for the crime of ECSA.
This begs an obvious question: so why is child porn illegal in Oregon? Certainly a main part is that we want to get rid of the market for such materials in an effort to discourage the creation of the photos and videos, since such photos or videos rely on child sexual abuse for their creation. (This after all explains the name of the crime: encouraging child sexual abuse. The existence of the photos creates a market that would serve to encourage the creation of more such photos.) But if the photos don't rely on child sexual abuse for their creation -- e.g., 17 year olds in Vancouver -- then is the purpose to discourage legal sexual acts in another state when we disapprove? How can that rationalization -- to discourage legal activity -- survive free speech protections?
Another supposed reason for ECSA laws is that the former children are revictimized every time the pictures are looked at. But how can you be revictimized if you were never a victim to begin with? It reminds me of that old Mitch Hedberg joke about refried beans: "I like refried beans, and I think they should make fried beans, because maybe they're just as good and we're just wasting time."
The legislature should just reintroduce the statutory defense it removed. Because the law right now seems to be less about protecting children than it is about discouraging pictures we disapprove of, which is decidedly not a constitutional justification for restricting speech. It was always a hard -- if not impossible -- defense in 99% of cases, and if it were the law now, it might avoid the risk of ridiculous prosecutions when a 17 year old takes a picture of herself and sends it to someone who travels into Oregon.
Instead, there is a very real possibility that someday the Oregon Supreme Court -- noting the absence of that defense -- will find the entire statute unconstitutional, which would mean that child porn would be legal in Oregon until the legislature could pass an emergency statute. If that happens, then we'd only have the AG's office and the legislature to blame.
