4 ms·

A teen shared a video of her own legal sex act, convicted as child pornographer

39 points by laurex 7y ago

mcv 7y ago
So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime. What didn't get addressed, though, is that that video has also been distributed to almost everybody in the school, without her consent. That means that nearly everybody in that school has distributed child porn. And they are only perpetrators and not victims. Only punishing the one perpetrator who is simultaneously the victim of the crime, is extremely arbitrary and backwards. At the very least be consistent and punish everybody who distributed that video.
- Insanity 7y ago
  If only the justice system worked in a completely logical way.. But yeah, I don't really follow the reasoning behind this at all. To me it seems like the girl didn't commit a crime (She shared it out of her own volition), but the first person to spread the video _did_ commit a crime. Otherwise, would 'revenge porn' always be the girls fault for sharing the video first, instead of the ex-boyfriend whom shared it?
  - bsder 7y ago
    > To me it seems like the girl didn't commit a crime (She shared it out of her own volition) While consensual sex may be legal at 16 in Maryland, I suspect that video pornography is not. Making the video probably was illegal prima facie.
    - Insanity 7y ago
      You're probably right about that yeah
    - usrlocaletc 7y ago
      I don't understand what public "good" this is trying to accomplish (who's the victim?); it seems like the victim was victimized twice: once by revenge porn and then again with an unjust, unconcerned, over-prosecuting legal system that incarcerates more people per capita than all other countries except Seychelles. A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal.
      - pizza234 7y ago
        > A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal. From a legal perspective, the distinction is considerably more detailed than just camera or not. This is a brief article: https://vistacriminallaw.com/pornography-vs-prostitution-in-california https://vistacriminallaw.com/pornography-vs-prostitution-in-... I knew a longer article, but I can't find it. Morally speaking, it all boils down to protecting the form of expression. Probably, when the laws were written, there was the idea the sex for money is abhorrent, but freedom of speech needed to be respected. In fact, the core difference of prostitution and porn is that in the former, clients definitely don't want to be filmed, so it kinda makes (I'm not implying that I agree or not).
      - bsder 7y ago
        > A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal. People like to say that, but it really isn't true. A very few, very localized areas have specific legal jurisprudence surrounding the production of pornography. Everywhere else, you're probably going to get arrested. And, if the prosecutor decides to try you, you are almost certainly getting jailed. And while you will probably eventually win your appeal, you get the privilege of fighting your appeal from jail in the meantime. So, while producing pornography may technically be legal everywhere in the US, practically it is only legal in areas that have specific jurisprudence declaring it so.
- bsder 7y ago
  > So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime. Yes, and this is due to the fact that possession or transmission of underage pornography is a "strict liability" crime. There is no mitigating factor allowed. The issue is that your enemies are active, malicious, and clever. No matter what loophole you allow, they will exploit it. So, you close all the loopholes. And then you wind up with these kinds of pathological situations. > At the very least be consistent and punish everybody who distributed that video. These kinds of cases invariably are driven by publicity more than justice--this is the problem with prosecutorial discretion. Normally, they get swept under the rug, but if it hits the media, someone is going to get scapegoated.
- lostmsu 7y ago
  Out of curiosity: is not this banned in order to prevent people from watching it and then repeating with someone else? In that case the victim is every underage person.
scarejunba 7y ago
Interesting. She shared the video with her friends, one of whom she fell out with. That friend then reported the video to the school resource officer, Caballero. The girl then met Caballero and thought he was going to help her. Instead, he set up the whole prosecution. It's interesting to see the result. If any school officer ever thinks any student is going to be honest with them ever again, they're an idiot. You get less of what you punish, and the proximate thing is talking to your school resource officer.
- rthrowayay 7y ago
  I don't think the school officer has any meaningful choice in this situation. He is suddenly in possession of CP the only real option for him is to go the police.
devoply 7y ago
Sounds like Caballero was in possession of child porn and watched it. Why was he not charged when he reported it to the police? He should be doing like what 5 years, and be put on a sex offender registry, lose his job, his life... etc. Probably commit suicide at some point. Honestly the sex laws in the United States are insane and the only ones who don't see the insanity are its puritan purveyors who are probably sexual deviants in the closet... And no one says anything because they are scared of not thinking of the children (tm). It comical to point out the hypocrisy of that rhetoric in this way. Like seriously think of the f*ing children.
- zzzcpan 7y ago
  Fighting child porn is about power, not actually fighting child abuse. Hence everything surrounding it is ridiculous, unfair and dishonest.
DoreenMichele 7y ago
This is awful on so many levels. The ruling is dangerous on several levels: It mangles a law designed to protect minors by putting them in greater risk of legal jeopardy than adults. It clashes with fundamental principles of due process, punishing the ostensible victim of a crime as a perpetrator as well. And it essentially encourages revenge porn against minors, who cannot attempt to halt the distribution of their own intimate images without risking prosecution. Wednesday’s decision is a disastrous blow to the rights and safety of minors in Maryland.
droithomme 7y ago
People like to blame judges but often judges are simply applying legislation in an impartial manner, as they are required to do, and if they don't do that, the system falls apart. The judgment followed the law, and it's clear from the specific wording of the judgment https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf that the judge is fully aware of all the issues. The solution is for the legislatures to modify the law, if they want to. Did this person distribute child pornography, as defined by the law, to others? Yes. Were the others minors as well? Yes. > "[T]he language of CR § 11-207 in its plain meaning is all-encompassing. The General Assembly has not updated the statute’s language since the advent of sexting and thus we may not read into the statute an exception for minors." Those are the judge's words, they are correct, and they explain why he had to rule this way.
- DoreenMichele 7y ago
  We have judges and juries in part so that human judgement still comes into play. Courts were never intended to be administers of abstract algorithms and actual justice be damned.
  - afthonos 7y ago
    Juries can nullify laws; not so judges. And even juries are often not told about this ability of theirs.
  - droithomme 7y ago
    Judges are there to determine if someone has violated the law. When judges go off that, as some sometimes do, they are a law unto themselves. Such judges allow the rich and elite to corrupt the system by purchasing judgments, something not available to the non-elite. The judge made clear in the decision he was applying the law as written and there's a strong undertone that he doesn't agree at all with the judgment he had to give as it was not just. He also explains explicitly that it's the legislature that is responsible and enumerates precisely why and what a solution would be should anyone desire it. Juries, on the other hand, are not trained in the law and are perfectly capable of engaging in nullification in the interests of justice. Honorable and responsible judges should not and are not supposed to engage in nullification because the risks of corruption are too extreme.
YeahSureWhyNot 7y ago
she is not a victim, she is a retarded teenager who thinks filming herself having sex and sharing the video with a 'tight' circle of friends will never lead to that video spreading out. she might be the victim but she is the cause of this, she started it she just didn't like how it progressed. Im sure she learned that she can't control everyone and real life works differently. conviction is too much but honestly she got nobody else to blame other than herself
mirimir 7y ago
> The clip depicted S.K. performing oral sex on an unknown man—a legal activity in Maryland, where the age of consent is 16. So how can it be child porn, if it was legal? Edit: OK, so the laws need to change, so that whatever's legal to do is legal to distribute, and vice versa. Otherwise, there's too much injustice.
- TylerE 7y ago
  Because the child porn laws are federal, and have a hard age limit of 18.
- scarejunba 7y ago
  A sign of how times have changed from the crazy world of puritanism (when oral intercourse could be considered illegal) - you assume it is the clip that is legal. They're talking about the oral sex when they're referring to legality. It is, of course, obvious that distributing a video of a legal act can be illegal. For instance, there's the obvious thing that a 14 year old is legally allowed to masturbate. They are not then allowed to video themselves masturbating and then distribute the video.
  - vageli 7y ago
    Does a 14 year old truly understand the gravity of the acts of filming and distribution here? I would argue against, and for that reason I find it hard to understand how courts could agree to the punishment when the agent of the crime is so obviously incompetent.
- afthonos 7y ago
  Pornography and sex are different things, with different laws regulating them. Videos of children (i.e anyone under 18) having sex are illegal in the vast majority of countries, irrespective of the age of consent.
- mcv 7y ago
  No, doing and distributing a video of it are completely different things. There's nothing wrong with children being naked to take a shower, for example, but distributing a video of naked children showering is completely different territory. I'd argue that intend and who it's shared with that matters a lot. A nudist family's holiday pictures might be harmless when it stays in the family, but turn into child porn when it ends up on sex sites. In general, I'd say that distributing any sex act involving someone else, without the consent of that other person, who needs to be adult enough to be able to give that consent, should be illegal.
fortran77 7y ago
There's really no choice. In the United States, there's no defense to possessing child pornography. It's a "strict liability" crime. So if weren't possible to prosecute a minor for creating child pornography, he or she could photograph himself/herself nude, send the photo to the entire staff of a school (for example), then call the Police and have them all arrested -- all while not being liable for a crime. As long as there's strict liability, creators of child pornography at any age, need to be held responsible.
- DaiPlusPlus 7y ago
  Isn’t there a defense if it’s planted? Or an out for content publishers? (e.g. I’m sure people have put encrypted or even cleartext CP on Amazon S3, yet S3 isn’t being shut-down by the feds).
  - fortran77 7y ago
    No. But prosecutors may decide not to prosecute.
- vageli 7y ago
  If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested? Questioned, sure but arrested? If I find drugs in the mail and turn them over to police, am I going to get arrested (assuming this was not a controlled delivery, I just received them randomly)? Both are crimes where possession alone is cause for arrest.
  - bsder 7y ago
    > If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested? Quite possibly arrested. However, a successful prosecution probably depends on the definition of "possession"--I suspect a competent defense attorney could argue that you really didn't take possession if you immediately reported it to the police and deleted it. > Both are crimes where possession alone is cause for arrest. Possession of drugs is not a "strict liability" crime.

39 points by laurex 7y ago

mcv 7y ago

So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime. What didn't get addressed, though, is that that video has also been distributed to almost everybody in the school, without her consent. That means that nearly everybody in that school has distributed child porn. And they are only perpetrators and not victims. Only punishing the one perpetrator who is simultaneously the victim of the crime, is extremely arbitrary and backwards. At the very least be consistent and punish everybody who distributed that video.

Insanity 7y ago
If only the justice system worked in a completely logical way.. But yeah, I don't really follow the reasoning behind this at all. To me it seems like the girl didn't commit a crime (She shared it out of her own volition), but the first person to spread the video _did_ commit a crime. Otherwise, would 'revenge porn' always be the girls fault for sharing the video first, instead of the ex-boyfriend whom shared it?
- bsder 7y ago
  > To me it seems like the girl didn't commit a crime (She shared it out of her own volition) While consensual sex may be legal at 16 in Maryland, I suspect that video pornography is not. Making the video probably was illegal prima facie.
  - Insanity 7y ago
    You're probably right about that yeah
  - usrlocaletc 7y ago
    I don't understand what public "good" this is trying to accomplish (who's the victim?); it seems like the victim was victimized twice: once by revenge porn and then again with an unjust, unconcerned, over-prosecuting legal system that incarcerates more people per capita than all other countries except Seychelles. A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal.
    - pizza234 7y ago
      > A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal. From a legal perspective, the distinction is considerably more detailed than just camera or not. This is a brief article: https://vistacriminallaw.com/pornography-vs-prostitution-in-california https://vistacriminallaw.com/pornography-vs-prostitution-in-... I knew a longer article, but I can't find it. Morally speaking, it all boils down to protecting the form of expression. Probably, when the laws were written, there was the idea the sex for money is abhorrent, but freedom of speech needed to be respected. In fact, the core difference of prostitution and porn is that in the former, clients definitely don't want to be filmed, so it kinda makes (I'm not implying that I agree or not).
    - bsder 7y ago
      > A tangential irony is adults engaging sex for money is illegal in most of America, while if it involves a camera, then it's porn and legal. People like to say that, but it really isn't true. A very few, very localized areas have specific legal jurisprudence surrounding the production of pornography. Everywhere else, you're probably going to get arrested. And, if the prosecutor decides to try you, you are almost certainly getting jailed. And while you will probably eventually win your appeal, you get the privilege of fighting your appeal from jail in the meantime. So, while producing pornography may technically be legal everywhere in the US, practically it is only legal in areas that have specific jurisprudence declaring it so.
bsder 7y ago
> So according to the court, the girl who distributed the video must have been simultaneously the victim and perpetrator of the crime. Yes, and this is due to the fact that possession or transmission of underage pornography is a "strict liability" crime. There is no mitigating factor allowed. The issue is that your enemies are active, malicious, and clever. No matter what loophole you allow, they will exploit it. So, you close all the loopholes. And then you wind up with these kinds of pathological situations. > At the very least be consistent and punish everybody who distributed that video. These kinds of cases invariably are driven by publicity more than justice--this is the problem with prosecutorial discretion. Normally, they get swept under the rug, but if it hits the media, someone is going to get scapegoated.
lostmsu 7y ago
Out of curiosity: is not this banned in order to prevent people from watching it and then repeating with someone else? In that case the victim is every underage person.

scarejunba 7y ago

Interesting. She shared the video with her friends, one of whom she fell out with. That friend then reported the video to the school resource officer, Caballero. The girl then met Caballero and thought he was going to help her. Instead, he set up the whole prosecution. It's interesting to see the result. If any school officer ever thinks any student is going to be honest with them ever again, they're an idiot. You get less of what you punish, and the proximate thing is talking to your school resource officer.

rthrowayay 7y ago
I don't think the school officer has any meaningful choice in this situation. He is suddenly in possession of CP the only real option for him is to go the police.

devoply 7y ago

Sounds like Caballero was in possession of child porn and watched it. Why was he not charged when he reported it to the police? He should be doing like what 5 years, and be put on a sex offender registry, lose his job, his life... etc. Probably commit suicide at some point. Honestly the sex laws in the United States are insane and the only ones who don't see the insanity are its puritan purveyors who are probably sexual deviants in the closet... And no one says anything because they are scared of not thinking of the children (tm). It comical to point out the hypocrisy of that rhetoric in this way. Like seriously think of the f*ing children.

zzzcpan 7y ago
Fighting child porn is about power, not actually fighting child abuse. Hence everything surrounding it is ridiculous, unfair and dishonest.

DoreenMichele 7y ago

This is awful on so many levels. The ruling is dangerous on several levels: It mangles a law designed to protect minors by putting them in greater risk of legal jeopardy than adults. It clashes with fundamental principles of due process, punishing the ostensible victim of a crime as a perpetrator as well. And it essentially encourages revenge porn against minors, who cannot attempt to halt the distribution of their own intimate images without risking prosecution. Wednesday’s decision is a disastrous blow to the rights and safety of minors in Maryland.

droithomme 7y ago

People like to blame judges but often judges are simply applying legislation in an impartial manner, as they are required to do, and if they don't do that, the system falls apart. The judgment followed the law, and it's clear from the specific wording of the judgment https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf https://www.mdcourts.gov/data/opinions/coa/2019/41a18.pdf that the judge is fully aware of all the issues. The solution is for the legislatures to modify the law, if they want to. Did this person distribute child pornography, as defined by the law, to others? Yes. Were the others minors as well? Yes. > "[T]he language of CR § 11-207 in its plain meaning is all-encompassing. The General Assembly has not updated the statute’s language since the advent of sexting and thus we may not read into the statute an exception for minors." Those are the judge's words, they are correct, and they explain why he had to rule this way.

DoreenMichele 7y ago
We have judges and juries in part so that human judgement still comes into play. Courts were never intended to be administers of abstract algorithms and actual justice be damned.
- afthonos 7y ago
  Juries can nullify laws; not so judges. And even juries are often not told about this ability of theirs.
- droithomme 7y ago
  Judges are there to determine if someone has violated the law. When judges go off that, as some sometimes do, they are a law unto themselves. Such judges allow the rich and elite to corrupt the system by purchasing judgments, something not available to the non-elite. The judge made clear in the decision he was applying the law as written and there's a strong undertone that he doesn't agree at all with the judgment he had to give as it was not just. He also explains explicitly that it's the legislature that is responsible and enumerates precisely why and what a solution would be should anyone desire it. Juries, on the other hand, are not trained in the law and are perfectly capable of engaging in nullification in the interests of justice. Honorable and responsible judges should not and are not supposed to engage in nullification because the risks of corruption are too extreme.

YeahSureWhyNot 7y ago

she is not a victim, she is a retarded teenager who thinks filming herself having sex and sharing the video with a 'tight' circle of friends will never lead to that video spreading out. she might be the victim but she is the cause of this, she started it she just didn't like how it progressed. Im sure she learned that she can't control everyone and real life works differently. conviction is too much but honestly she got nobody else to blame other than herself

mirimir 7y ago

> The clip depicted S.K. performing oral sex on an unknown man—a legal activity in Maryland, where the age of consent is 16. So how can it be child porn, if it was legal? Edit: OK, so the laws need to change, so that whatever's legal to do is legal to distribute, and vice versa. Otherwise, there's too much injustice.

TylerE 7y ago
Because the child porn laws are federal, and have a hard age limit of 18.
scarejunba 7y ago
A sign of how times have changed from the crazy world of puritanism (when oral intercourse could be considered illegal) - you assume it is the clip that is legal. They're talking about the oral sex when they're referring to legality. It is, of course, obvious that distributing a video of a legal act can be illegal. For instance, there's the obvious thing that a 14 year old is legally allowed to masturbate. They are not then allowed to video themselves masturbating and then distribute the video.
- vageli 7y ago
  Does a 14 year old truly understand the gravity of the acts of filming and distribution here? I would argue against, and for that reason I find it hard to understand how courts could agree to the punishment when the agent of the crime is so obviously incompetent.
afthonos 7y ago
Pornography and sex are different things, with different laws regulating them. Videos of children (i.e anyone under 18) having sex are illegal in the vast majority of countries, irrespective of the age of consent.
mcv 7y ago
No, doing and distributing a video of it are completely different things. There's nothing wrong with children being naked to take a shower, for example, but distributing a video of naked children showering is completely different territory. I'd argue that intend and who it's shared with that matters a lot. A nudist family's holiday pictures might be harmless when it stays in the family, but turn into child porn when it ends up on sex sites. In general, I'd say that distributing any sex act involving someone else, without the consent of that other person, who needs to be adult enough to be able to give that consent, should be illegal.

fortran77 7y ago

There's really no choice. In the United States, there's no defense to possessing child pornography. It's a "strict liability" crime. So if weren't possible to prosecute a minor for creating child pornography, he or she could photograph himself/herself nude, send the photo to the entire staff of a school (for example), then call the Police and have them all arrested -- all while not being liable for a crime. As long as there's strict liability, creators of child pornography at any age, need to be held responsible.

DaiPlusPlus 7y ago
Isn’t there a defense if it’s planted? Or an out for content publishers? (e.g. I’m sure people have put encrypted or even cleartext CP on Amazon S3, yet S3 isn’t being shut-down by the feds).
- fortran77 7y ago
  No. But prosecutors may decide not to prosecute.
vageli 7y ago
If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested? Questioned, sure but arrested? If I find drugs in the mail and turn them over to police, am I going to get arrested (assuming this was not a controlled delivery, I just received them randomly)? Both are crimes where possession alone is cause for arrest.
- bsder 7y ago
  > If someone texts me an image of child pornography and I go straight to the police and report it, I would be arrested? Quite possibly arrested. However, a successful prosecution probably depends on the definition of "possession"--I suspect a competent defense attorney could argue that you really didn't take possession if you immediately reported it to the police and deleted it. > Both are crimes where possession alone is cause for arrest. Possession of drugs is not a "strict liability" crime.