Is this child pornography? Question for lawyer types.

Factual Questions
1

My parents are in their 40’s. If they video taped themselves having sex, as far as I know, they haven’t broken any laws.

I’m 17. My girlfriend is 16. The legal age for marriage in this state is 16. What if we got married today, and on our honeymoon at the Motel 6 we video taped ourselves having sex. Would we be guilty of possessing child pornography?
What if I wasn’t in the tape. What if my “wife” video taped herself masterbating and gave me the tape. Would I be guilty of possesing kiddie porn?

2

Legal age of marriage is not what’s important, it’s legal age of consent. <== click here

3

Wisconsin Statutes:

765.02(1)
(1) Every person who has attained the age of 18 years may marry if otherwise competent.

765.02(2)
(2) If a person is between the age of 16 and 18 years, a marriage license may be issued with the written consent of the person’s parents, guardian, custodian under s. 767.23 (1) or 767.24, or parent having the actual care, custody and control of the person. The written consent must be given before the county clerk under oath, or certified in writing and verified by affidavit or affirmation before a notary public or other official authorized to take affidavits. The written consent shall be filed with the county clerk at the time of application for a marriage license. If there is no guardian, parent or custodian or if the custodian is an agency or department, the written consent may be given, after notice to any agency or department appointed as custodian and hearing proper cause shown, by the court having probate jurisdiction.

It is my understanding that once married, you are both legal adults in the eyes of the law, and responsible for your own words and deeds. Thus you two making your own videotapes would be between two consenting adults.

However, if you made a tape and gave it to one of your 17-year-old friends, you could be charged as an adult with distributing “pornography” to a minor. Yes, you both are the same age, but because you are legally married and the other person is not, you are now a legal adult.

In either case, you still cannot legally purchase/drink alcohol until you are 21. :slight_smile:

4

**Legal age of marriage is not what’s important, **

What in the world are you talking about? Are you saying that I could legally get married but not have sex with my wife?

It is my understanding that once married, you are both legal adults in the eyes of the law, and responsible for your own words and deeds. Thus you two making your own videotapes would be between two consenting adults.

So… my 16 year old wife video tapes herself masterbating. I have the tape and am watching it while she’s in school. The cops come into my house with a warrent (to search for my homework which I claim the dog ate) and they see me watching a tape of a minor masterbating. Could I be in legal trouble, or does the fact that were married over ride the child porn law?

5

As far as I can tell, there aren’t any exceptions in the laws about child pornography. The fact that you were married to the minor in question, and never intended to distribute it doesn’t matter. You could have sex with your wife, but if you record it: Have a fun time in prison! :slight_smile:

6

I seriously doubt any jury would convict you, or your wife, for videotaping each other having married sex. The whole point of criminalizing child porn is that it exploits minors for the sexual gratification of others. The “exploited” in this case is your wife. If she videotapes herself masturbating, clearly she’s not exploiting anyone.

If a sixteen-year old posts a Quicktime MPEG of himself jerking off to some BBS, he’s not going to be convicted of child porn because the very age which makes his naked image illegal also protects him from responsibility. The government can’t have it both ways and declare that someone is simultaneously “too young to consent” and “old enough be liable.” You can’t be the victim of your own crime.

Also, child porn itself has fuzzy definitions. A Robert Mapplethorpe exhibit, your mom’s photo album, a nudist colony’s brochure, and “RussianLolitas.com” all contain naked pictures of pre-teens. They’re not all equally prosecutable because intent counts. As it should. The tricky part is if, say, someone takes a photo from a nudist colony brochure and then uploads it to a sleazy website. Then it’s porn. But is the person who took the photo, or the nudist colony that authorized the brochure, or the graphics company that printed it guilty of child porn?

This is why we have grand juries before actual trials. If a judge thinks the case is ridiculous, as he would if you were caught with photos/videos of your legal wife, it will never be prosecuted. If all laws were cut and dry, lawyers wouldn’t hav to go to graduate school for 4 years.

Also, assuming your wife is post-pubescent, even someone else who steals a copy of the video could mount a legal defense saying “I didn’t know she was 16. she looks 18 to me.” If a jury is unconvinced that he knew otherwise beyond a reasonable doubt, then he wouldn’t be convicted. The porn companies that produced Tracy Lords’ movies were not arrested for child porn. The porn actors who had sex with her on film were not prosecuted for having sex acts with a 15-year old girl. Because they could reasonably argue that they didn’t know.

Now if you two made a website and charged people for viewing vids of your wife masturbating, the moment you turned 18 you’d probably be in some trouble for trafficking the images of your “exploited wife”. But so long as she testified on your behalf you’d probably still avoid conviction.

However, the publicity of a trial would then make it that much easier to prosecute other people who downloaded and possessed the images, because they “know” that they are illegal. Just as it would be easy to prosecute somone who tried to sell Tracy Lords movies today.