a Prediction (UPDATED)
by: Ryan • January 4, 2011 • no comments
Updated: OSC never reached the question of the constitutionality of the statute, because it held the evidence was insufficient as a matter of law to prove the crimes alleged. Thus, this argument remains, regardless of the skepticism we might have of its likelihood of success (as opposed to legal merits). Still, there is no harm in a facial demurrer, based on the argument below. If it seems like I have gilded the lily by coming up with a hypothetical that is far from the typical ECSA situation, keep in mind the current wave of sexting charges - in Oregon and around the country - involving teenagers. Rather than being remote, the likelihood of a 17 year old in Washington texting explicit pictures of herself to an Oregon resident seems inevitable. But because the issue involves freedom of expression, you don't need those exact facts to argue the statute is unconstitutional. Update II: Don't forget about the issues surrounding criminal episodes, if you do take one of these cases to trial.
Tomorrow, around 8AM, the Oregon Supreme Court is going to address - in two separate opinions - a number of issues related to the crime of Encouraging Child Sexual Abuse.
One of the opinions is going to look at, among other things, whether the crime violates the free speech guarantees of the Oregon Constitution. Previously, the reasoning why possession of child porn doesn't violate the free speech guarantees is that child porn inevitably and invariably relies on a form of child sexual abuse.
I'm going to go out on a limb and predict that the OSC will not actually find the ECSA statutes unconstitutional.
But I will say that if they rely on the rationale above, they will be making a mistake. The crime of encouraging child sexual abuse in Oregon does not require actual abuse, as defined by law. And I have a very simple way of demonstrating that.
17 is the age of consent in Washington State. If a 17 year old has intercourse, it is not a crime. It is not abuse. If a photo is taken of the act in question, and that photo is brought into Oregon, the possessor is guilty of ECSA II. Yet the possession of that photo never entailed any sexual abuse, as defined by law.
I'm not saying that ECSA is unconstitutional. Maybe it is, maybe it isn't. Smarter people than me can debate that. But if tomorrow's opinion hinges on the idea that the photos necessarily involve child abuse, the court would be assuming something that is not true.
