Wednesday, March 9, 2011

Is this a crime? If so, what is the right sentence?

This riveting article from The New York Times ably shows the complexity of child pornography crimes and how their sentences should be anything but one-size-fits-all:

[Evan] Emory, 21, an aspiring singer and songwriter, became a household name here [in Muskegon, MI] last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube. ...

Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.
Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression. ...
Mr. Emory said the idea for the video arose out of planning for a Valentine’s Day variety show at a downtown club. He wrote the explicit song when he was 16, he said, and had played it in bars before. But for the variety show he wanted to pair it with “an inappropriate audience” as a comedy segment. He thought of using elderly people, he said, but decided instead on young children.
He has admitted that he deceived the teachers at Beechnau Elementary School, in the small farming community of Ravenna, about his intentions. Mr. Emory included a disclaimer with the video, saying that no children had actually been exposed to the sexual lyrics. He said that his friends — fans of Daniel Tosh and other edgy comedians on the Internet and cable television — all thought the video was hilarious when they saw it at the local nightclub or on YouTube. (It has since been removed.)
No children were hurt or even present for the song, yet they are visible and identifiable in the video. The prosecutor who charged Mr. Emory says that Michigan state law "covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity."  Based on the article's description and that legal standard, you tell us: is this child porn, or free expression?  

And if it is child porn, what is a fair sentence?  
Mr. Tague [the prosecutor] defends his original charge but says he wants to resolve the case in a way “that will send a message that this is wrong but will not ruin the young man’s life.”
One path under discussion, Mr. Nolan [Mr. Emory's lawyer] said, would be for Mr. Emory to plead to a lesser charge, receiving some jail time, probation and community service. He would not have to register as a sex offender. But any deal would need approval from a judge. A hearing is set for next Monday, Mr. Nolan said.
Judicial discretion was created for unique situations like this.  Unfortunately, with the increasing use of mandatory minimums for child pornography, many judges -- and especially federal court judges -- will not get to decide what is fair and what would "ruin [a] young man's life."