Early this year a case in Florida raised an interesting case, involving child pornography v consensual sex.
Two teenagers, 16 and 17, were involved in a consensual sexual relationship.
The 16 and 17 year old took pictures of themselves, with a digital camera, of some of their sexual activities, and then emailed each other the pictures . Some how the police became aware of this case and decided to arrest and prosecute the teenagers involved.
In Florida both the teenagers were above the legal age of consent, and therefore there was no offence of underage sex (or similar). However, the couple involved were below the age for sexual photography (as they would be in the UK, under Sexual Offences Act 2003), as a result the material was deemed to be pedophilic in nature, and the couple were involved in making and distributing it – even though there was no allegation of anything other than consensual sex, or that anyone other than the couple (until the police were called) had seen the images.
The couple appealed, but the Florida Appeals court, upheld the conviction.
This case would be a difficult one to judge, because of the effect of case law it is not just the merits of this case that must be considered, but all future cases. For example, if the judge, at appeal, had said “not guilty, because they are consensual”, then any person involved in distrubting, creating, or possesing images of 16 year old’s having sex would have the defence that the individuals were consenting, and the court would have to prove otherwise. Which can be difficult when those appearing in the photographs can not be traced.
The problem then gets worse, if peadophile is in possesion of pictures two 13 years old having sex, he could argue that they are 16 (they just look young), and that it is consensual. The prosecution would need to find the victims in the photograph to prove that they are both under 16 and not consenting, which is difficult, and can be impossible in many cases, given the international nature of the images.
Therefore the judge’s probably did not have any choice but to uphold the case, which is unfortuante for the couple involved.