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Sex, Yes; Photos, No: Why Encouraging Violates the Oregon Constitution

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by: Ryan • February 28, 2011 • no comments

I have discussed this issue previously, but an interesting news story highlights the argument I have been making.

In this story, a former police officer received a 15-year prison sentence for taking photographs of two minors with whom he was legally permitted to have sex. (h/t Chris O'Connor)

This is because the age of the minors were 16 and 17: old enough to consent to sexual activity in Indiana (or Washington State or Canada, but not Oregon).

Aside from being absurd, why does this matter? Because the Oregon Constitution's free expression protections are much broader than the First Amendment to the US Constitution, and for possession of child porn (aka "encouraging child sexual abuse") to be unlawful in Oregon, it must be because the photos - according to the Oregon Supreme Court - necessarily depict child sexual abuse.

"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."

State v. Stoneman, 323 Or 536, 920 P2d 535 (1996)

So we have a contradiction: ECSA is only criminal because it must necessarily involve child abuse. But a 17 year old Indianan or Canadian or Washingtonian who has intercourse has not been abused as a matter of law. But possession of photographs of that intercourse is criminal under ECSA.

Personally, I don't know that I'd care all that much, except that the child porn witch hunts have produced horrible, unjust results, example A of which is in the story above. This is happening in Oregon too, in part because no one wants to publicly defend people accused of these offenses.

I did consider as an alternative title to this post: You Can Touch But You Can't Look.