Illinois Supreme Court Case Highlights Sexual Hypocrisy

CHICAGO, Ill.—If you just read the "background" section of the Illinois Supreme Court's opinion in People v. Hollins, you won't get the full picture. "On March 19, 2009," the opening paragraph reads, "defendant was charged by information in the circuit court of Stephenson County with three counts of child pornography: (1) between January 1, 2008, and December 1, 2008, defendant knowingly photographed A.V., a child whom defendant knew to be under the age of 18 years, while actually engaged in an act of sexual penetration with defendant, in violation of section 11-20.1(a)(1)(i); (2) between January 1, 2008, and December 1, 2008, defendant knowingly photographed A.V., a child whom defendant knew to be under the age of 18 years, while actually engaged in an act of sexual penetration involving the sex organs of the child, in violation of section 11-20.1(a)(1)(ii); and (3) between January 1, 2008, and December 1,2008, defendant knowingly used A.V., a child whom defendant knew to be under the age of 18 years, to appear in a photograph in which A.V. would be depicted as actually engaging in an act of sexual penetration with defendant, in violation of section 11-20.1(a)(4)." Seems pretty straight-forward, right? A guy takes hardcore pictures of an underaged girl and, as the evidence shows, emailed them to her, where they were later discovered on the girl's computer by her mother, who promptly turned them over to the police. He's a child pornographer. Case closed, right? Except... what the opinion doesn't tell you is that Marshall Hollins, then 34, met 17-year-old "A.V." when both were students together at Highland Community College in Freeport, and in fairly short order, they started having sex. No problem there; Illinois' age of consent is 17. Move along; nothing to see here. Except... during one of their bedroom trysts, Hollins used his cell phone to take several photos of himself having sex with A.V., and although none of the photos showed the participants' faces or any other identifying features like birthmarks or tattoos, after Hollins emailed three of the photos to A.V., her mom happened to find the photos while looking through her daughter's email... and the rest is history. Hollins freely admitted that he'd had sex with the girl and that he'd taken the pictures, but thought that since she was 17, and Illinois' age of consent is 17, there wouldn't be any trouble. After all, they'd had sex together; he'd certainly seen her naked body and explored it intimately, so what could be the harm of taking a few photos so they could both savor the memory? Hollins apparently actually didn't know that taking photos of an "underage" girl—any underage girl—was illegal under the state's child porn statutes. As the case worked its way through the illinois court system, Hollins argued that the child porn statute, as applied to him, violated his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, as well as similar rights under the Illinois constitution, in the following ways: (1) that application of the statute to defendant does not bear a reasonable relationship to the public interest to be protected because it denies consenting adults the right to engage in private sexual activities of their choice; (2) that the statute violates the Illinois Constitution’s privacy clause, which provides greater privacy protections than does the United States Constitution; and (3) that when viewed in the context of the Illinois sex offense statutes, the statute failed to give defendant fair notice his conduct was criminal. Frankly, those are pretty good arguments. Although there have been cases where guys have posted sexual photos of their ex-girlfriends online, Hollins was no vengeful teenager, and there was no expectation that anyone would see the photos except him and A.V.. Beyond that, both Hollins and A.V., who were having regular sexual relations, consented to having the photos taken in the privacy of Hollins' bedroom as part of their legal sexual relationship—and he had no reason to believe there was anything wrong with taking the pictures because, after all, they were already having sex! Sadly, the Illinois Supreme Court didn't see it that way. It ruled that, under the "rational basis" test, Illinois had properly prohibited minors from being photographed in sexual situations to protect them from sexual abuse and exploitation, and that, "Raising the age to 18, even though the age of consent for sexual activity is 17, is a reasonable means of accomplishing this legitimate government purpose as it aids the State in enforcing child pornography laws." Moreover, Justice Rita Garman, writing for the court's majority, opined that, "there are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity. The consequences of sexual activity are concrete, and for the most part, readily apparent to teenagers: possible pregnancy, sexually transmitted diseases, and emotional issues. Many, if not most, teenagers who are 16 and 17 will have been apprised of these consequences by parents or sexual education classes in school. The dangers of appearing in pornographic photographs or videos are not as readily apparent and can be much more subtle... [O]nce 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." So the majority's concern is for the girl's future reputation... even though she can readily consent to having actual sex with anyone her age or older. The majority also dismissed Hollins' claim that the child porn prohibition is a "legislative trap," since he could reasonably believe that if she was old enough to have sex with him, she was old enough to have her picture taken by him. As far as they were concerned, "ignorance of the law is no excuse." Hollins also made the entirely rational argument that he "belongs to a class of people... who engage in legal sexual activities with consensual partners and choose to photograph their private interactions, thereby violating child pornography statutes that define child so as to include such otherwise legal sex partners. Defendant was not in the same position as a person who photographs a child not old enough to engage in sexual activity, but rather defendant argues he was in the same position as anyone who photographs his or her legal, consenting sex partner. According to defendant, it is not reasonable or fair for the legislature to prohibit the sex partners of such people from photographing such otherwise lawful, private, sexual activity." Sadly, since the court decided that the child porn laws only had to pass muster under the lower-level "rational basis" test, and since Hollins wasn't a member of a "suspect class" that was being discriminated against, nor were any of his "fundamental rights" being implicated, he was out of luck on that argument as well. However, dissenting Justice Ann Burke, joined by Justice Charles Freeman, got right to the heart of the matter: "In essence, defendant alleges that the State violated his right to substantive due process when it applied the child pornography statute to him because the photographs that he took of himself and A.V. depict private, lawful conduct." Moreover, in response to the majority's assertion that the law need only survive the "rational basis" test and that no fundamental rights of Hollins were implicated, Burke delved into an analysis of the most-cited child porn case, New York v. Ferber, and decided that her colleagues had misinterpreted the inclusiveness of Ferber's child porn concept. "This broad reading of Ferber was called into question by the Supreme Court’s decision in Ashcroft v. Free Speech Coalition," she wrote. "In that case, the Court struck down on first amendment grounds a federal law that criminalized sexually explicit images that appear to depict minors but that were produced without using any real children, i.e., 'virtual' child pornography. In reaching this result, the Court distinguished Ferber in language that seemed to suggest that the category of child pornography exempted from first amendment protection was 'not merely justified but also shaped by reference to the particular harms that motivated its creation.'" [Citations omitted here and below] But while Burke felt that Ashcroft was less clear about the age below which a person could not legally be photographed in nude or sexual situations than the Garman majority believes, her main argument centers around the U.S. Supreme Court's opinion in U.S. v. Stevens, the dog-fighting videos case, which itself contains a long discussion of the meaning and implications of Ferber. "Following Stevens it is clear that there is no first amendment exception for child pornography, per se," she wrote. "Rather, child pornography is simply one example of an historical category of speech that is exempted from first amendment protection: speech that is an 'integral part of conduct in violation of a valid criminal statute.' Or, to put it another way, for a photograph to be child pornography in the federal constitutional sense, and thus be exempted from first amendment protection, the photograph must be 'an integral part of conduct in violation of a valid criminal statute.'" According to Burke, that "valid criminal statute" would be the laws against sexually abusing a child... but clearly, that standard is inapplicable here, since A.V. could legally screw Hollins all she wanted; hence, the photos of them "doing it"—that is, their "conduct"—has no relation to the crime for which child pornography was criminalized in the first place! "Stevens' importance to this case is clear," she wrote. "There was nothing unlawful about the production of the photographs taken by defendant in this case because the sexual conduct between defendant and A.V. was entirely legal. The photographs are therefore not child pornography as defined by the Supreme Court for purposes of the first amendment. And, because the photographs taken by defendant are not child pornography for purposes of the first amendment, we cannot simply presume that rational basis review is appropriate in this case." Thus, Burke figured, Hollins shouldn't have conceded, as he did early on in the proceedings, that none of his "fundamental rights" had been violated, and had she been in the majority, would have asked Hollins' attorney for briefing on the relationship of the Stevens decision to this case. It'll be very interesting to see which other courts, if any, come to similar conclusions, and how the Hollins case may eventually change the whole concept of "child pornography."