Last
year Radley Balko
described the case of Eric Rinehart, a former Indiana cop who
was convicted of manufacturing child pornography based on video and
photographs of two teenagers with whom he was having sex. Although
both girls were above 16, Indiana’s age of consent for sex, they
were below 18, the federal age of consent for appearing in sexually
explicit images—a two-year difference that resulted in a 15-year
sentence for Rinehart. A recent
decision by the Illinois Supreme Court hinges on the same sort
of difference in ages of consent, and the incongruity is even more
striking because in this case both ages were set by state law.

At 32, Marshall Hollins had a 17-year-old girlfriend—creepy and
questionable, you might think, but perfectly legal in Illinois,
where the age of consent for sex is 17. Yet because Hollins took
pictures of himself having consensual sex with his perfectly legal
girlfriend (for their own private use, both of them said), he was
convicted of three child pornography offenses and sentenced to
eight years in prison under Illinois law, which says people cannot
agree to appear in such images until they turn 18. That distinction
makes no sense, Hollins argued in his appeal, because the ban on
child pornography is aimed at protecting minors from sexual
exploitation. But last Thursday the Illinois Supreme Court
rejected Hollins’ due process and equal protection arguments,
saying “there are rational, reasonable arguments in support of
having a higher age threshold for appearance in pornography than
for consent to sexual activity.” While 17 might be old enough to
have sex, the court said, allowing the event to be photographed
entails additional risks that arguably require another year’s worth
of maturity and wisdom:

Memorialization of the sexual act makes permanent an intimate
encounter that can then be distributed to third parties. These
concerns are exacerbated in the modern digital age, where once a
picture or video is uploaded to the Internet, it can never be
completely erased or eradicated. It will always be out there,
hanging over the head of the person depicted performing the sexual
act.

As dissenting Justice Anne M. Burke noted, that argument
does not apply in this case, since “all five photographs [taken by
Hollins] are extreme closeups of the couples’ genitals,” including
neither faces nor “visible identifying marks such as scars or
tattoos.” Burke argued that
United States v. Stevens, the 2010 decision in which
the U.S. Supreme Court overturned a federal ban on depictions of
animal cruelty, clarified that bans on child pornography are
consistent with the First Amendment because the acts recorded by
such images are themselves illegal. If so, she said, the pictures
taken by Hollins do not qualify for this First Amendment
exception.

In any event, the message sent by Illinois—feel free to have sex
with her; just don’t take any pictures—is counterintuitive, to say
the least, and it is patently unjust to impose an eight-year prison
sentence for an impulsive decision to take out a cell phone and
press a button while engaging in otherwise legal behavior.

The Illinois Supreme Court’s decision is
here. More on child pornography laws
here.