Monday, February 28, 2011

You Can Have Sex With Them; Just Don't Photograph Them

That's the provocative title of this excellent Radley Balko article from Reason. Another moral of the story (apart from the title of the article) is that you can't judge a case by how bad the charge sounds.

Eric Rinehart, the federal prisoner (and FAMM member) profiled in the article, was convicted of producing child pornography.  Sounds bad, but the facts of the case show how complicated this story was -- and how justice was thwarted because the judge couldn't take those complexities into consideration:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17. One of the women had contacted Rinehart through his MySpace page. He had known the other one, the daughter of a man who was involved in training police officers, for most of her life. Rinehart was going through a divorce at the time. The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.
Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal. The age of consent in Indiana is 16. That is also the age of consent in federal territories. Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart. Rinehart lent her his camera, which she returned with the promised photos. Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.
In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison. Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied. ...

It did not matter that Rinehart's sexual relationships with the two girls were legal. Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer. There was also no evidence that he abused his position as a police officer to lure the two women into sex. His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)
I sometimes hear people make arguments that go something like this:  "Oh, I understand why we should not have mandatory minimums for nonviolent drug offenders ... but we should definitely have them for bad, scary crimes like sex crimes and violent crimes."

But mandatory minimums are also unjust when applied to crimes that sound sensational, horrific, and/or scary -- in short, the kinds of crimes lawmakers just love to slap mandatory sentences on these days.  Undoubtedly, there are people out there who deserve 15 years for making kiddie porn.  But Eric Rinehart is living proof that mandatory minimums will -- always, eventually, and inevitably -- produce punishments that are grossly unjust, cost us a fortune, and do nothing to make us safer.

That truth about mandatory minimums will out, and it doesn't matter if the crime in question involves child porn or crack cocaine.

-- Stowe


Anonymous said...

Thanks for speaking up about this huge injustice!!

Rita said...

Any law that punishes more severely for images than it does for a contact offense does not serve justice or protect society. These laws pander to public hysteria which is fed by the media and are used by politicians to win feel good votes. We are misleading the public into believing we are protecting children and the cost of millions of dollars per year to incarcerate those for thought crimes.