why the state's best argument in favor of constitutionality is actually an argument against
by: Ryan • July 3, 2013 • no comments
The appellate courts have looked at whether the crime of encouraging child sex abuse 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.
That statutory defense was repealed, but the ECSA statute was nevertheless constitution, according to the COA, which wrote: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. Criminalize 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 they 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. 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 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.
