Not disputing that, they definitely did nothing wrong, and this whole prosecution is based on prudish morality rather than notions of actual harm. That's not to say that what they did was wise or health. I think a good comparison here would be cannabis use; most people agree it isn't wrong and shouldn't be a matter for the law, but I doubt many would claim that it's healthy or a smart decision to make.
I've never heard of such a harsh sentence being passed in any of the several cases like this there have been. I didn't think the sentencing guidelines even applied to juvenile cases (and I'm certain the term "felony" does not; all juvenile convictions are delinquencies).
Such a sentence applied to a minor would be open to an 8th amendment challenge too, I suspect (since the restrictions you mentioned were never intended to apply to age-appropriate peers, and restricting a child to only being able to interact with people inappropriate for their age would definitely be considered "cruel and unusual").
I doubt that. I think a first amendment defense would cripple it fairly well, since the supreme court held in Ashcroft v. FSC that speech that creates no victim cannot be denied protection. There's a few other defences you could throw at it too (substantive due process, right to privacy, etc). All other things failing there's always the absurdity doctrine, which has been successfully used in the past to toss out statutory rape cases where all parties involved were considered the victims of the offence they were charged with.
And if Illinois allows jury trials in juvenile courts, good luck finding one that'll convict, unless you hand-pick the most overly religious zealots you can find.
AFAIK, the law in Illinois (and many states, though unsure of the exact number) treats underage sex as rape, regardless of the age of the participants. I agree it needs to be re-thought out.
The police chief in this case has actually outright said he sees underage sexuality as something we shouldn't "accept as a society", so there's no inconsistency there (whether that's a good thing or not). As for why he's not pursuing rape charges, God knows. Perhaps in his twisted mind he believes that would be excessive, yet filing equally bogus charges and wasting considerable amounts of public money is not; people this clueless are hard to predict and interpret, since they don't have the intellect to act consistently.
Um, no. I don't see where I'm apologising for anyone. As I've said several times, I think this prosecution is idiotic and unnecessary, and that this overzealous and undereducated police chief is trying to involve his morality, rather than reason, in his application of the law.
He asked why the police got involved, which we don't actually know exactly, so I'm answering with an educated guess about things that we haven't (yet) been told about based on the information we do know. Key word here is "guess"; notice I never once said I was *certain* about what I said, just that I *suspected* it was possible. People don't generally go through the hassle of getting the police involved unless they feel they've been wronged. Now it could be that I'm wrong. Maybe the girl's mother decided to call the police because she disapproved of he daughter's friends; for all we know maybe the girl herself did it to place the blame on the others during a guilt trip or as part of some twisted joke. I just don't think that's as likely.
Spoken like a true anonymous coward who can't make a point and resorts to ad hominems.
I maintain that I don't see how a short probation sentence would be in any way life ruining. I'm definitely not saying that prosecuting this was in any way reasonable, just that it's not necessarily going to end in disaster.
This is where I suspect the article isn't telling us everything. For the parents of one of the kids to get the police involved, it seems very probable that they had reason to think that their daughter had been harmed by one or more of the others involved. Perhaps the girl found out it had been uploaded without her permission, or even was being used by one of the others to ridicule her. The acts may well have been mutually consensual, but I have a strong feeling the filming and/or publication of the video was not.
I was talking more about juvenile courts. It's very true that adult correctional facilities are more concerned with incapacitation, for better or for worse.
But we're likely not talking about anything close to jail time here, if it even gets to court. It's simply wrong to say that any punishment the court might choose to give is necessarily going to be harmful.
You could probably build a defense around this. It would probably depend on the circumstances; would a child who rapes another child be found guilty of rape? I expect the conclusion would generally be that it's a mitigating factor, since the person is old enough to know they are doing harm, even if too young to understand the extent of that harm.
If this is indeed exactly as reported, then it's another textbook example of somebody abusing law to impose their morality on others. This police chief has no business holding the position he does; he has no absolutely understanding of the legislative history behind this law (NY v. Ferber would give him more than enough information) - which itself isn't ideal for someone tasked with selecting what sort of behavior is worthy of prosecution, but becomes downright disastrous when he actually believes and claims that he does understand it and uses it as a justification for his decisions - and more importantly, he has no notion of one of the most important ideas in law, which is that law should be divorced from morality, with no exceptions. This won't hold up in court for a multitude of reasons, assuming it even gets that far (I suspect the DA's office might not even bother pursuing this case).
However, I'm suspecting there's more to this than meets the eye. I strongly doubt that all four people involved had equal say in this being posted on Twitter, and I also doubt anybody's parents would have called the cops unless they felt that their daughter had been wronged by one or more of the others involved; parents may well be overprotective, but people generally don't call the police unless somebody has been harmed, which if this news article really was correct, wouldn't be the case here. If this is the case, then juvenile charges (for the appropriate offense, mind) and probation don't seem excessive.
The role of the court here is to punish and rehabilitate, so saying that any ruling would make things worse sounds akin to saying that all punishment is bad. But, the idea of punishment is that by making things (proportionally) worse temporarily, it actually makes things better in the long term by deterring behavior which is self-harmful. It's likely that a well-chosen punishment, whether given by the court or the parents, would actually make things better for them by inciting them to give more thought to their decisions in the future.
The court could simply order them to not use a camera-enabled phone for a number of months, which is no different to what most parents would do.
My main concerns in this situation would be the frankly criminal waste of public money that's gone into prosecuting this, and the fact that part of this basically comes down to legislating morality. My view has always been that juvenile courts should not get involved in behavior that harms only those involved, except in the most extreme of cases (parens patriae), and even then should do so without bringing morality into it.
You're missing his point, which is about how you define an age limit. There has to be some unambiguously defined boundary, otherwise you end up with a complete mess, although I agree that age of consent laws as they stand are far from ideal and could do with being rewritten.
I don't see your point about rewriting the law here though; sexual exploitation of a minor already illegal, and photographing somebody who isn't considered able to consent to it is considered exploitation. Are you questioning whether that should be considered exploitative at all, or just whether it should be considered as exploitative as actually having sex with them?
Exploiting oneself wouldn't stand up in court, for sure, but that isn't the issue here. There are four people involved, each accused of harming the other three.
Re: Playstation 4 Share Play has demonstrated differently.
Re: Re:
Re: Re: Re: Re:
Such a sentence applied to a minor would be open to an 8th amendment challenge too, I suspect (since the restrictions you mentioned were never intended to apply to age-appropriate peers, and restricting a child to only being able to interact with people inappropriate for their age would definitely be considered "cruel and unusual").
Re: Re:
All other things failing there's always the absurdity doctrine, which has been successfully used in the past to toss out statutory rape cases where all parties involved were considered the victims of the offence they were charged with.
And if Illinois allows jury trials in juvenile courts, good luck finding one that'll convict, unless you hand-pick the most overly religious zealots you can find.
Re:
Re: Re: Root cause
The police chief in this case has actually outright said he sees underage sexuality as something we shouldn't "accept as a society", so there's no inconsistency there (whether that's a good thing or not). As for why he's not pursuing rape charges, God knows. Perhaps in his twisted mind he believes that would be excessive, yet filing equally bogus charges and wasting considerable amounts of public money is not; people this clueless are hard to predict and interpret, since they don't have the intellect to act consistently.
Re: Re: Re:
He asked why the police got involved, which we don't actually know exactly, so I'm answering with an educated guess about things that we haven't (yet) been told about based on the information we do know. Key word here is "guess"; notice I never once said I was *certain* about what I said, just that I *suspected* it was possible. People don't generally go through the hassle of getting the police involved unless they feel they've been wronged. Now it could be that I'm wrong. Maybe the girl's mother decided to call the police because she disapproved of he daughter's friends; for all we know maybe the girl herself did it to place the blame on the others during a guilt trip or as part of some twisted joke. I just don't think that's as likely.
Re: Re: Re: Our corrections system is about self-perpetuation first, containment second and rehabilitation third.
I maintain that I don't see how a short probation sentence would be in any way life ruining. I'm definitely not saying that prosecuting this was in any way reasonable, just that it's not necessarily going to end in disaster.
Re:
The acts may well have been mutually consensual, but I have a strong feeling the filming and/or publication of the video was not.
Re: Our corrections system is about self-perpetuation first, containment second and rehabilitation third.
But we're likely not talking about anything close to jail time here, if it even gets to court. It's simply wrong to say that any punishment the court might choose to give is necessarily going to be harmful.
Re: Re: Re: Re: Re:
(untitled comment)
This won't hold up in court for a multitude of reasons, assuming it even gets that far (I suspect the DA's office might not even bother pursuing this case).
However, I'm suspecting there's more to this than meets the eye. I strongly doubt that all four people involved had equal say in this being posted on Twitter, and I also doubt anybody's parents would have called the cops unless they felt that their daughter had been wronged by one or more of the others involved; parents may well be overprotective, but people generally don't call the police unless somebody has been harmed, which if this news article really was correct, wouldn't be the case here. If this is the case, then juvenile charges (for the appropriate offense, mind) and probation don't seem excessive.
Re: Re:
The role of the court here is to punish and rehabilitate, so saying that any ruling would make things worse sounds akin to saying that all punishment is bad. But, the idea of punishment is that by making things (proportionally) worse temporarily, it actually makes things better in the long term by deterring behavior which is self-harmful. It's likely that a well-chosen punishment, whether given by the court or the parents, would actually make things better for them by inciting them to give more thought to their decisions in the future.
The court could simply order them to not use a camera-enabled phone for a number of months, which is no different to what most parents would do.
My main concerns in this situation would be the frankly criminal waste of public money that's gone into prosecuting this, and the fact that part of this basically comes down to legislating morality. My view has always been that juvenile courts should not get involved in behavior that harms only those involved, except in the most extreme of cases (parens patriae), and even then should do so without bringing morality into it.
Re: Re: Re:
I don't see your point about rewriting the law here though; sexual exploitation of a minor already illegal, and photographing somebody who isn't considered able to consent to it is considered exploitation. Are you questioning whether that should be considered exploitative at all, or just whether it should be considered as exploitative as actually having sex with them?
Exploiting oneself wouldn't stand up in court, for sure, but that isn't the issue here. There are four people involved, each accused of harming the other three.
Re:
Techdirt has not posted any stories submitted by mojace.
Submit a story now.
Tools & Services
TwitterFacebook
RSS
Podcast
Research & Reports
Company
About UsAdvertising Policies
Privacy
Contact
Help & FeedbackMedia Kit
Sponsor/Advertise
Submit a Story
More
Copia InstituteInsider Shop
Support Techdirt