Sixteen-year-old girl criminally liable for child pornography

A state appellate court in Florida has affirmed the decision of a trial court that adjudicated a 16-year-old girl, A.H., a delinquent based on her violation of the state’s anti-child pornography statute. The law in question, Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.

The charges against A.H. were based on digital photos A.H. and her 17-year-old boyfriend took of themselves “engaged in sexual behavior.” The photos were never shown to a third party, but A.H. e-mailed them to the boyfriend’s personal account.

At the trial court level, A.H. moved to dismiss the charges, arguing that the Florida statute was unconstitutional as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the photos was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest.

The trial court ruled that there was a compelling state interest in preventing the production of the photographs and criminal prosecution was the least intrusive means of furthering the state’s compelling interest. The appellate court agreed, and further determined that the privacy provision of the state constitution did not protect A.H.’s behavior.

At the heart of the case was the court’s determination that A.H. had no reasonable expectation of privacy in the photographs. First, the decision to take the photographs and to keep a record that may be shown to people in the future weighed against a reasonable expectation of privacy. Second, because the persons in the photos were minors, they had no reasonable expectation that the photos would not be shared with others. The court stated that “[m]inors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally.” Third, the fact that they had kept the photos private was immaterial: “The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.”

The court went on to hold that even if A.H. had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The court concluded that prosecution of the participants, regardless of their age, was the least intrusive means of furthering that compelling interest. Moreover, the court observed that “the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.”

The court also addressed the significance of the fact that A.H. had e-mailed the photos to the boyfriend (who, you’ll remember was the other participant in the photos), concluding that that act would contribute to the widespread distribution of the photos:

Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date.

One of the judges on the three-judge panel lodged a vigorous dissent, arguing that the application of the statute against A.H. violated her constitutional right to privacy. Citing to the Florida constitution and previous case law, the dissenting judge noted the “clear constitutional mandate” of privacy giving rise to a right that applies to both adults and children alike.

The dissenting judge also criticized the majority opinion’s emphasis on the fact that A.H. had e-mailed the photos to the boyfriend:

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

So the case is problematic for a number of reasons. It certainly complicates the analysis as to what kind of privacy rights minors have. But it also raises a fundamental question as to how laws should be enforced to effectuate their purposes. If anti-child pornography statutes are intended to protect minors from exploitation, doesn’t it seem at least a bit anomalous to prosecute the very persons who are being exploited?

A.H. v. State, (Slip Op.) — So.2d —-, 2007 WL 120008 (Fla.App. 1 Dist. Jan. 19, 2007)