United States v. Battle, No. 16-4378 (4th Cir.) June 8, 2017.
Commonwealth v. Mienkowski, No. 16-P-446 (Mass. App.) June 8, 2017.
United States v. Battle, No. 16-4378 (4th Cir.) June 8, 2017.
Convicted of producing, distributing and receiving child pornography, Battle challenged as overbroad the statute supporting that conviction. Battle argued that the consitution protects child pornogrphy where a child knowingly productes images of him or herself. No abuse occurs in such situations, he offered.
The Fourth Circuit disagreed. The protection does not attach to the pornography, but rather exists to insulate minors from the consequences of poor judgment.
The statute with which Battle was charged is not overbroad, as it only concerns offers to provide or requests to obtain child obscenity in pornogrpahy involving actual children.
United States v. Battle (4th Cir., 2017)
Commonwealth v. Mienkowski, No. 16-P-446 (Mass. App.) June 8, 2017.
Mienkowski appealed from conviction on charges of child rape, posing a child in the nude, and dissemination of material harmful to minors, arguing that he could not be convicted of disseminating material harmful to minors where the minor receiving the video in issue would have been able, lawfully, to do in person the activity depicted in the order.
Mienkowski, at age 23, was a neighbor who befriended 13 year old (pseudonymous) Beth, with whom he engaged in digital, oral, and (according to Beth) genital sex, although he was acquitted of the latter.
Beth stayed in phone contact with Mienkowski when family circumstances took her out of state. A concerned aunt provided Beth’s cell phone to police.
Mienkowski offered to police his opinion that Beth was a ‘slut’ and ‘whore’ and denied involvement in transmittal of graphic videos or in inducing Beth to send revealing photographs. Mienkowski told police someone must have borrowed his phone or that the evidence was fabricated by either Beth, Beth’s aunt, or the police.
Mienkowski admitted to having sent a video of himself masturbating but argued that doing so could not violate the statute criminalizing the transmission of material harmful to minors because the law does not preclude consensual sexual activity not involving intercourse by individuals over 14. What could not be prosecuted for ‘in person’ acts ought not be persecuted in video format.
The appellate court disagreed. Mienkowski’s video appealed to prurient interests and was contrary to prevailing standards, making it the sort of information the statute proscribes.
Defendant’s characterization of a consensual relationship with Beth was not consistent with the reality that the relationship was one between an adult rapist and a child victim. Texts and the video evidenced the currency of Mienkowski’s sexual and emotional abuse of Beth.
The court also disagreed with defendant’s argument that he did not know that the material was harmful to minors, citing an earlier decision’s observation that “no competent adult” could possibly be unaware that such material was proscribed.
Mienkowski also sought refuse in the First Amendment’s association and speech protections, a sanctuary denied by the Massachusetts Court of Appeals,which noted that the exercise of state powers t curtail the abuse of children is constitutionally permissible even if incidental impingement on First Amendment interests occurs.
Neither was Mienkowksi’s argument that the statute prohibiting transmittal of material harmful to minors childed his protected speech interests persuasive to the court. The specific proscriptions applied to material outside the protections of the First Amendment and, as such, present no impediment to the exercise of First Amendment freedoms.
Just Lawful 