Encouraging Child Sexual Abuse and Inherent Illegality

This wikilog article is a draft, it was not published yet.

by: Ryan • January 19, 2011 • no comments

I talked about this briefly in an earlier post. I had pointed out that not all "child porn" under the statute involved illegal sex with a minor. In Washington State, as in Canada and numerous other states, the age of consent is 16. Thus, consensual sex with a 17 year old is not illegal. But if that 17 year old takes a picture of herself engaged in a sexual act and texts it to her boyfriend in Oregon (or the picture is on the boyfriend's phone and he saves it and drives into Oregon), he is guilty under Oregon law of Encouraging Child Sexual Abuse in the Second Degree. Thus, a person can be guilty of the offense even if the picture did not itself involve sexual abuse.

Keep that in mind when reading the following analysis of an Oregon Supreme Court decision.

In State v. Stoneman, 323 Or 536, 920 P2d 535 (1996), the Oregon Supreme Court upheld as constitutional a statute that prohibited the exchange of child pornography. ORS 163.680 (1987). They did so on the grounds that the statute was directed at a forbidden effect, the sexual abuse of children, not at the content of the speech. But they based that conclusion on the fact that, by definition, there must necessarily be some harm to children in the creation of child pornography.

We note, first, that ORS 163.680 (1987) prohibited commerce in material, the production of which necessarily involves harm to children. 12 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.

It is worth repeating: the court's ruling was dependent on the fact that there must be harm to children, and that requirement saves the statute from constitutional infirmity.

Again, because ECSA involves issues of free speech and free expression, the defendant arguably does not need to show that the statute is unconstitutional if applied to him, only that it renders some protected expression unconstitutional.