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Old Enough to Have Sex, but Too Young to Film It: Are Prosecutors Violating Constitutional Rights by Prosecuting Legal Sexual Activity under Child Pornography Statutes?


Jon H. Still


Independent

February 22, 2013


Abstract:     
Are prosecutors violating individuals’ constitutional rights by prosecuting legal sexual activity under child pornography statutes? While many are under the impression that child pornography falls into the category of “unprotected free speech,” I argue that, based on the Supreme Court's holding in U.S. v. Stevens, 130 S.Ct. 1577 (2010), child pornography is not a category of unprotected free speech but falls under the category of “speech integral to criminal conduct.”

Meaning, the speech – depiction of sexual activity – must be integral to criminal conduct. Based on the Supreme Court’s holding in New York v. Ferber, 458 U.S. 747 (1982), child abuse is the criminal conduct that child pornography is integral. The focus of this comment is the filming of legal sexual activity that meets state statutes’ definition of child pornography.

A number of states have a gap between the legal age of consent and the age at which constitutes child pornography. This gap allows individuals to perform sexual activity, but if the individuals film the sexual activity, they will be violating child pornography statutes. I suggest that the depictions of this legal sexual activity do not meet the definition of child pornography as discussed by the Supreme Court in Ferber, since the depictions are not integral to the abuse of children.

Number of Pages in PDF File: 23

Keywords: Child Pornography, New York v. Ferber, Speech Integral to Criminal Conduct, U.S. v. Stevens, Legal Sexual Activity

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Date posted: February 25, 2013  

Suggested Citation

Still, Jon H., Old Enough to Have Sex, but Too Young to Film It: Are Prosecutors Violating Constitutional Rights by Prosecuting Legal Sexual Activity under Child Pornography Statutes? (February 22, 2013). Available at SSRN: http://ssrn.com/abstract=2222752 or http://dx.doi.org/10.2139/ssrn.2222752

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Jon H. Still (Contact Author)
Independent ( email )
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