Does the Nix analysis impact the open issue regarding ECSA?
by: Ryan • August 8, 2014 • no comments
I've been waiting for the State v. Nix opinion for awhile, largely for clues to how the court might approach the issue of whether persons who were victims of recorded child abuse but were dead at the time that the crime of Encouraging Child Sex Abuse occurred could be victims of the latter offense. There are many differences, of course. Nix deals with whether living animals can be victims, not dead people. Nevertheless, the state's position in both cases would extend the general legal concept of victim, which traditionally means a living human being. Could the legal principles that help us answer one question also guide us towards answering the other?
The Nix situation is sui generis in a couple of particulars. The court noted that, while animals are property, the property owner can't be deemed the victim of animal abuse or neglect since the property owner is often the cause of the abuse or neglect. ("Indeed, it would be anomalous to conclude that the “victim” of animal neglect is the owner of the animal when it is the owner who is charged with having committed the offense." -- Note for future reference: it's entirely possible for a person to be charged with identity theft for the misappropriation of their own identify, for example when a person gives their credit card to someone else and says, "charge as much as you can and then I'll report it stolen.")
My preference, perhaps not surprisingly, is that the Nix court, in a proper display of humility, would have concluded that in the absence of any express language from the legislature, we're not going to make new law, though I must admit the court's analysis is more compelling than I anticipated. Chief Justice Balmer had noted at oral argument that it's entirely possible the legislature never even considered this issue, and it would show an entirely preferable restraint, at least according my judicial philosophy, to wait until the legislature expressly stated that animals can be victims before the court decided to expand the law. But since the statutory rule of lenity was repealed, I believe that when given a choice over legislative intent, in the absence of any express legislative history, the courts have ruled for the prosecution 100%.
Nevertheless, I want to return to whether any insights can be gleaned regarding how the court might deal with the issue of whether victims can include persons who were dead before the crimes were committed. In an effort to focus on the legal issue, and not the horror of abuse, the example I use is whether Abraham Lincoln would be considered a victim now if we discovered child porn in which he, as a child, was featured. Or to put it another way, are children who are genuinely victims of abuse then victims for all eternity, 100, 500, or 1000 years from now? We can assume that the same child porn people look at now, much of which was originally filmed in 8mm, will still be looked at as long as there is an internet.
The Nix court does supply a dictionary definition of victim that, without exception, is limited to the living, or at least anyone capable of being harmed. But as I noted in my post that discusses last month's oral argument at the Court of Appeals on this issue, the state's argument -- as summed up by the presiding judge -- is essentially that the person is victimized by the ECSA counts, even if long dead, because the original recordings anticipated future viewing, and therefore, somehow, the victim-status relates back to the original victimization. Now this really would be sui generis if this argument were adopted by the Court of Appeals. And of course there is no express -- or even implied -- legislative history that would support that position. But leaving aside the legal issue, the option of appearing callous to victims of sexual abuse or appearing sympathetic, it would take courage to show the humility I had described above.
