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Can a legal expert please explain to me how this can even happen? Shouldn't a judge somewhere be able to take one look at this and realize the ridiculousness of

Can a legal expert please explain to me how this can even happen? Shouldn't a judge somewhere be able to take one look at this and realize the ridiculousness of the whole thing and throw it out?

bbanyc 11y ago
Not a legal expert by any means, but my guess is: the authorities disapprove of teens sexting, there's no specific law against sexting (and probably no constitutional way to ban it), but the child pornography laws can be stretched to extend to it. Thus although the prosecution is facially absurd, everyone involved knows what's "really" being prosecuted here and is okay with it.
tsotha 11y ago
Judges aren't supposed to pick and choose which laws get enforced - you can't have a system where the legislature passes a law and rest of the government says "Nah, we don't like that one." What needs to happen is 1) the legislature needs to change the law to include exceptions where appropriate and 2) the voters in that area need to take this case into consideration when the prosecutor comes up for reelection.
- JoeAltmaier 11y ago
  Where to begin. Judges don't enforce laws. The legislature passing laws and the executive deciding which to enforce is part of the design of checks and balances.
  - tsotha 11y ago
    I can only assume you skimmed my comment without actually reading it. As I pointed out, judges should not be determining which laws get enforced. In North Carolina prosecutors are elected, so there's no "the executive" involved. Furthermore, in the federal system the executive does not decide which laws to enforce. That's a dereliction of duty - he's supposed to enforce them all. Not doing your job is not part of "the design of checks and balances".
    - chrismcb 11y ago
      You are right judges shouldn't decide what gets enforced. But they do get to decide if the law is a good one or bad one. They can overturn a law, so that it will no longer be enforced
      - tsotha 11y ago
        Only if there's a constitutional basis for doing so. I'm no expert on North Carolina law, but I'm going to go ahead and assume the state constitution is silent on electronic pictures of naked people.
- chrismcb 11y ago
  That is exactly how government works. The legislative branch can veto laws. And the judicial branch can over turn laws that are deemed illegal. There are a couple of absurdities in this case. One is a person is both a child and an adult. Another us it is perfectly legal fir two people (or one person) to see each other naked, in person. But not in a picture.
  - tsotha 11y ago
    >That is exactly how government works. The legislative branch can veto laws. What? This makes no sense whatsoever. The legislature makes law. They can change it however they want. Veto is a different concept entirely. >And the judicial branch can over turn laws that are deemed illegal. No, the judicial branch can overturn laws that are unconstitutional. Laws cannot be illegal unless they're enacted illegally. For a judge to find a law unconstitutional he must have some textual basis for doing so, and "that doesn't seem fair" isn't enough to do it. >There are a couple of absurdities in this case... The law is absurd in many, many ways. But the judges are still supposed to apply it as written unless it's unconstitutional. In this case the law is constitutional, so that's not a legitimate avenue for the defendant to pursue.

Can a legal expert please explain to me how this can even happen? Shouldn't a judge somewhere be able to take one look at this and realize the ridiculousness of the whole thing and throw it out?

bbanyc 11y ago

Not a legal expert by any means, but my guess is: the authorities disapprove of teens sexting, there's no specific law against sexting (and probably no constitutional way to ban it), but the child pornography laws can be stretched to extend to it. Thus although the prosecution is facially absurd, everyone involved knows what's "really" being prosecuted here and is okay with it.

tsotha 11y ago

Judges aren't supposed to pick and choose which laws get enforced - you can't have a system where the legislature passes a law and rest of the government says "Nah, we don't like that one." What needs to happen is 1) the legislature needs to change the law to include exceptions where appropriate and 2) the voters in that area need to take this case into consideration when the prosecutor comes up for reelection.

JoeAltmaier 11y ago
Where to begin. Judges don't enforce laws. The legislature passing laws and the executive deciding which to enforce is part of the design of checks and balances.
- tsotha 11y ago
  I can only assume you skimmed my comment without actually reading it. As I pointed out, judges should not be determining which laws get enforced. In North Carolina prosecutors are elected, so there's no "the executive" involved. Furthermore, in the federal system the executive does not decide which laws to enforce. That's a dereliction of duty - he's supposed to enforce them all. Not doing your job is not part of "the design of checks and balances".
  - chrismcb 11y ago
    You are right judges shouldn't decide what gets enforced. But they do get to decide if the law is a good one or bad one. They can overturn a law, so that it will no longer be enforced
    - tsotha 11y ago
      Only if there's a constitutional basis for doing so. I'm no expert on North Carolina law, but I'm going to go ahead and assume the state constitution is silent on electronic pictures of naked people.
chrismcb 11y ago
That is exactly how government works. The legislative branch can veto laws. And the judicial branch can over turn laws that are deemed illegal. There are a couple of absurdities in this case. One is a person is both a child and an adult. Another us it is perfectly legal fir two people (or one person) to see each other naked, in person. But not in a picture.
- tsotha 11y ago
  >That is exactly how government works. The legislative branch can veto laws. What? This makes no sense whatsoever. The legislature makes law. They can change it however they want. Veto is a different concept entirely. >And the judicial branch can over turn laws that are deemed illegal. No, the judicial branch can overturn laws that are unconstitutional. Laws cannot be illegal unless they're enacted illegally. For a judge to find a law unconstitutional he must have some textual basis for doing so, and "that doesn't seem fair" isn't enough to do it. >There are a couple of absurdities in this case... The law is absurd in many, many ways. But the judges are still supposed to apply it as written unless it's unconstitutional. In this case the law is constitutional, so that's not a legitimate avenue for the defendant to pursue.