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why the state's best argument in favor of constitutionality is actually an argument against

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by: Ryan • July 3, 2013 • no comments

The appellate courts have looked at whether the crime of encouraging child sex abuse (ECSA) is constitutional under Oregon's free speech guarantees. An old Supreme Court decision held that it was, in large part because there was at that time a defense to the crime: if the defendant reasonably believed the images were legal in the place the images were created.

First, the reason it was okay to criminalize the images.

We note, first, that ORS 163.680 (1989) prohibited commerce in material, the production of which necessarily involves harm to children. In fact, it is that aspect of the films and photographs described in ORS 163.680 (1987), i.e., their relationship to harm to children, rather than their communicative substance, that sets them apart. In other words, ORS 163.680 (1987) prohibited the purchase of 'visual reproduction(s) of sexually explicit conduct by a child under 18 years of age,' not in terms of the content of those reproductions, but because they owe their very existence to the commission of sexual abuse of a child and are, consequently, an extension of that harmful act -- one that may, in many instances, provide an economic incentive to abuse the child.

Stoneman at 546.

Next, the importance of the aforementioned defense.

The legislature's enactment of ORS 163.683 (1987), which had the effect of modifying ORS 163.680 (1987), is relevant to the foregoing distinction. ORS 163.683 (1987) provided:
       “It is an affirmative defense in any prosecution under ORS 163.680 alleging the obtaining or viewing of a photograph,   
        motion picture, videotape or other visual reproduction of sexually explicit conduct by a child that the production of the 
        photograph, motion picture, videotape or other  visual reproduction did not violate laws prohibiting production of such 
        visual reproductions in the jurisdiction where it was produced and that, if imported into the United States, was done so 
That is, ORS 163.683 (1987) established that it was legal to purchase a visual reproduction whose "substance" is identical to that of the material described at ORS 163.680 (1987), so long as that reproduction is not the product of an act of actual sexual abuse of a child. ORS 163.680 (1987) thus was directed at commerce in the materials described in the statute only because they are the products of sexual exploitation of children. Its constitutionality must be reviewed in that light.

Stoneman at 546-547.

Note that the Oregon Supreme Court seems to say that -- where the substance would constitute sex abuse in Oregon -- it is not "an act of actual sexual abuse" [emphasis added] if the sexual activity was legal where it occurred. As you'll see, the Oregon Court of Appeals would subsequently hold the opposite: that legal behavior was sex abuse wherever it occurred if it would have been illegal in Oregon.

The statutory defense at ORS 163.683 (1987) was subsequently repealed. Nevertheless, the ECSA statute remained constitutional, according to the COA, which wrote:

[T]he basic flaw in defendant’s argument is that the focus of ORS 163.684, by its terms, is on acts that encourage the sexual exploitation of children. * * * [T]he dissemination of the depiction of the child sexual abuse is more than expression; rather, it is further exploitative conduct that occurs after the abuse takes place. In other words, the circumstances of the underlying sexual abuse are not within the ambit of the statute’s proscription, but the conduct that occurs thereafter involving the dissemination of the abuse portrayed is. In that sense, the statute does not punish expression any more than the statute that the Supreme Court upheld in Stoneman or the statute that this court upheld in Ready.

Betnar, 214 Or App at 423.

If the issue again reaches the Oregon Supreme Court, it's worth pointing out that the main argument the state relies on for the statute's constitutionality is in fact an argument for the exact opposite.

At its core, the issue is whether ECSA statutes are intended to prohibit speech, or whether they are intended to "discourage" sex abuse (as opposed to "encouraging" sex abuse by creating a market for child porn).

Therefore, the images themselves must represent child sexual abuse. Criminalizing images of non-abuse doesn't serve to discourage the creation of images of abuse. If anything, it would discourage the creation of images of non-abuse, which would be an infringement on the right of free speech (i.e., you can't criminalize images of an adult woman dressed as a child engaging in sex acts.)

However, under the current statute, it's sex abuse as long as the behavior would be illegal in Oregon, even if it were perfectly legal in Washington, or most of the country. Consequently, if a 17 year old takes a phone-video of him and his 17 year old girlfriend having intercourse, and he does it in Clark County, the intercourse is perfectly legal under Washington State law. But if he drives in Oregon, he's guilty of ECSA, for possessing images which would constitute child sex abuse had the intercourse occurred in Oregon.

Constitutionally, this is okay, according to the AG's office.

ORS 163.684 criminalizes encouraging sexual abuse only if the defendant “[k]nows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse.” ORS 163.684(1)(b) (Emphasis added). “Child abuse,” in turn, is defined as “conduct that constitutes, or would constitute if committed in this state, a crime in which the victim is a child.” ORS 163.665(2) (Emphasis added). The emphasized wording shows that the legislature views sexual conduct as harmful to a child if that conduct would constitute child sexual abuse under Oregon law. Although the legislature may not criminalize the sexual abuse itself if it occurred outside the state, it may criminalize the duplication of the resulting images when that duplication occurs within the state.

At first blush, this isn't a bad argument, even if it seems to conflict with how the Oregon Supreme Court described "actual sexual abuse." Put it this way: sure, Washington State and the rest of the country don't consider it child abuse, but we in Oregon do. And as long as we consider it child abuse, it is constitutionally okay to prohibit the images.

Except the constitutionality of the law doesn't just hinge on whether the images depict child abuse. In fact, if the only purpose of the statute was to criminalize images of illegal behavior, then it would plainly be unconstitutional. No, the purpose of the statute, as reflected in the name of the statute, and as the Oregon Supreme Court has held in upholding the constitutionality of an earlier version of the statute, is to prohibit the encouragement of future acts of sexual abuse. But in the context of the above hypothetical, that would mean the law was intended to prohibit two 17 year olds from having intercourse in Washington State. This is crazy. It's perfectly legal for two 17 year olds to have intercourse in Washington State. It makes no sense to say that the constitutionality of the law in Oregon hinges on the goal of discouraging completely legal behavior in Washington State, Canada or most of the country.

Obviously, 17 year olds are having sex or not having sex in Canada, utterly unconcerned with whether images of that sex are legal or illegal in Oregon.

Rather, the law -- as interpreted by the COA and the AG's office -- reflects nothing more than a dislike of images of minors having sex, an aversion with which we can all agree. And so they have criminalized the images. But that reason alone wouldn't support the constitutionality of the statute. If anything, the AG's argument makes plain that the law currently criminalizes images the legislature doesn't like, with no real regard of the reasonableness of the state's attempt to discourage legal behavior around the country.

The US Supreme Court faced a similar issue when striking down a law that criminalized images of animal abuse. The court noted that the law only required that the animal abuse be illegal in the state where the images were distributed, and not where the images were made.

What is more, the application of § 48 to depictions of illegal conduct extends to conduct that is illegal in only a single jurisdiction. Under subsection (c)(1), the depicted conduct need only be illegal in “the State in which the creation, sale, or possession takes place, regardless of whether the . . . wounding . . . or killing took place in [that] State.” A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful. This provision greatly expands the scope of § 48, because although there may be “a broad societal consensus” against cruelty to animals, Brief for United States 2, there is substantial disagreement on what types of conduct are properly regarded as cruel. Both views about cruelty to animals and regulations having no connection to cruelty vary widely from place to place.

United States v. Stevens, 559 U.S. 460 (U.S. 2010)

The same is true about child sexual abuse, except that Oregon is in the minority of states that prohibit sex between 17 year olds. To the extent the country has reached a consensus, Oregon doesn't share it.