It probably won’t surprise you to learn that I consider my prosecution to have beenirrational. In this post I’ll lay out the reasons why, and you can tell me whether you agree or whether you think I ’ve erred. We can also use this as a springboard to a broader discussion of society’s handling of child porn and sex crimes, if you wish. I admit that I’m curious to know how the rationalist community views these topics, and it was that curiosity which led me to post on your forum.
Let’s begin with the foundational principle of “equal justice under law”. This is inscribed on the front of the US Supreme Court, so presumably it is intended to carry some weight in our legal system. Please take a moment to ponder whether my prosecution – when viewed in the totality of the circumstances—advanced or undermined this ideal. Before deciding, consider the following.
At this very moment, there are numerous people roaming around (perhaps in your neighborhood?) who did the exact same things that I did with the girl in this case. Their actions and identities were known to the authorities, yet unlike me they were never prosecuted. Why not? We’ll never know for sure, but it’s likely due to some combination of chanceand human discretion. They were in different districts than I was, and in the Americancriminal legal system each district is empowered to make its own charging decisions. This tends to create disparate outcomes, as illustrated by my case.
Sentencing disparities between similarly situated defendants are relatively well known and much maligned. But the really insidious disparities are the ones you never see, for they are between the people who got ensnared by the system – like me – and the people who engaged in the same conduct but were never caught or never prosecuted – like the others who hooked up with the girl in my case. Their sentences can’t becompared with mine because they never got sentenced in the first place (save for one other individual, who got 2 years less than I did). They are, for all intents and purposes, invisible. If you’re familiar with the work of Tversky and Kahneman, you will recognize which cognitive bias is in play here: WYSIATI. What you see is all there is. To wit, you see me. You don’t see the four guys whom she did the gangbang with. They could be gangbanging some other 16-year-old at this very moment, for all we know. And consider this: In a nation of 340 million, how many people are there who have ever banged a 16-year-old? It must be in the millions, perhaps tens of millions. How many high school students are banging their 16-year-old boyfriend or girlfriend right now? If you live in the suburbs, there’s a very good chance that you’re within a half mile radius of such a person as YOU read this. If you happen to have kids or siblings who are in high school, then you probably have people residing in your house who have done the same things that I did. You’ve heard of “teen sexting”, right? Teen sexting is child pornography. Full stop. Do you see now why my prosecution (andsentence) is deeply problematic from the standpoint of “equal justice”?
If you don’t, that’s alright. It was deeply problematic from every other standpointas well, as I’m about to show.
Next, I’d like you to consider the statute I was charged with violating: 18 USC 2251 (a). Nothing in the text of the statute (read it yourself or take my word for it) would preclude minors from being charged with producing CP. Thus, if you believe in equal enforcement of the laws and you take a “textualist” approach to interpreting statutes, as conservative jurists (i.e., most jurists) claim to do, then you should be in favor of prosecuting minors who produce CP, even if it depicts themselves (again, nothing in the statute militates against this). As applied to my case, this means the feds should have charged the girl with the same crimes as me, since she knowingly produced and distributed CP images of herself on multiple occasions, both with and without the participation of others. Of course, they did not charge her. That’s another strike against “equal justice under law” as well as the legitimacy of textualism.
Now consider the claim, implicit in my prosecution and stated directly in court, that the girl could not have consented to our activities and / or that her stated consent was meaningless, because she was under the federal age of consent at the time. In making this claim, the government was essentially saying that she could not be treated the way an adult would be treated in these circumstances, due to her age. Yet it is well known that in America the government routinely prosecutes minors – often younger than the girl in my case – and charges them “as adults”. Indeed, the prisons of this nation are filled with people serving long sentences for crimes committed when they were juveniles. So. the lesson here appears to be that a minor cannot be treated as an adult by the legal system unless it’s convenient for the government, in which case they can and will be so treated. A blatant and odious double standard.
If you think about it, the notion of a bright-line age of consent is irrational to the point of absurdity. By virtue of this notion, conduct is deemed legal or illegal solely on the basis of when it occurred. The very same act, with the very same people, miraculously transforms from being a major felony to fully legal conduct overnight, in the eyes of the legal system. What other category of crime can that be said about? Certainly, none that I can think of. If I rob, rape, kill, injure, or defraud you, my criminal liability will be the same whether I commit the act today, next month, or next year. As it should be. But when it comes to those crimes to which age of consent applies, suddenly the distinction between today and next month or next year makes all the difference in the world. For instance, I wouldn’t be in prison if I’d met the girl a year-and-a-half later than I did. Every single other detail of our interaction could have remained exactly the same except for the calendar date. That ’s patently absurd, but that’s age of consent for you. There’s a strong case to be made that age of consent, as currently applied by our legal system, is one of the greatest absurdities evercodified into law. I well understand that society doesn’t want adults having sex with children, but surely, we can do better than this bright-line idiocy. Why not use a simple competency / maturity test instead?
From a just desserts standpoint my punishment is completely indefensible, because no one ever claimed to have been harmed by my actions. If we go by JS Mill’s harm principle, I should never have been prosecuted. To those who suggest that the girl may at somepoint come to regret the existence of the content I produced, I can tell you I considered that possibility and took steps to mitigate any future harm by anonymizing all of the images I sent out. She’s unrecognizable there and she knows it, so I very much doubt that she has lost or will lose any sleep over it. I have every reason to believe she moved on from this a long time ago, even before my arrest. After all, she started a new life in NYC after our meetings were concluded, just as I started a new life in LA.
Then the feds came knocking and insisted on turning our two hookups into a felony. They created the narrative of a crime as well as the roles of victim and perpetrator. It was their idea entirely – not mine, not the girl’s and not the public’s. Grand juries were originally conceived to guard against this sort of thing, but we know how that turned out (*cough* ham sandwich *cough*). In the future – that is, après national divorce – it will probably be necessary to return to privately run prosecutions, which were the norm during the founding era. Government actors simply have too many perverse incentives to be entrusted with the power to prosecute citizens.
Next, we have the familiar argument, favored by conservatives, which essentially holds that “the law is the law and it must be enforced whether it’s rational or not, or else society will descend into anarchy”. To this I would retort that the law isn’t always enforced, and this is no accident but a deliberate policy decision. As Justice Scalia wrote in Castle Rock v. Gonzales (2005), “A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes”. In fact,law enforcement in this country is almost entirely at the discretion of police and prosecutors. Every single day, they decide which cases and persons to pursue and which to pass on – anarchy does not result. As Attorney General (later Supreme Court Justice) Robert Jackson remarked all the way back in 1940, “Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases… If the [DOJ] were to make even a pretense of reaching every probable violation of federal law, ten times its staff would be inadequate”. If that was true in 1940, how much truer must it be today? It is my contention that the authorities should have used their ample discretion to pass on this case. Surely the Department of Homeland Security could have found something better to do than chasing down a slutty teenage girl and her paramours.
Finally, there is the public safety argument. If you believe that my actions make me a potential threat to minors, you might find my incarceration warranted on the grounds of preventing some future harm. Of course, this sets up a dilemma, as I am no more capable of proving that I won i t harm minors in the future than you are capable of proving that I will. We could rely on actuarial instruments, the most prominent onebeing STATIC-99, but these come with their own set of problems. As always, the devil is in the details. All I can really do (and did do) is point out what I consider to be relevant factors that bear upon my sexual proclivities and risk of reoffending, such as the following: 1) A 16-year-old isn’t a 6-year-old. It’s not the same ballpark, not even the same league; 2) The 16-year-old in this case was no ordinary 16-year-old, and I would never have even met her if she hadn’t made a dedicated effort to pursue adults for sex online; 3) Most so called “child predators” don’t move across the country to pursue a career in the adult film / sex industry. What I was doing in LA had nothing to do with minors, and the feds knew it; and so on. We’ll leave for later the important question of whether such public safety concerns are truly warranted, premised as they are on the assumption that all sex experienced by anyone under 18 is inherently harmful (as you may suspect, I do not share this assumption).
So, there it is. As far as I can tell, my prosecution served no purpose other than to give some government bureaucrats another notch on their belts. I was a warm body fed into the machinery of the criminal legal system and the prison-industrial complex. Job security for cops, judges, and jailers. What else did my prosecution achieve? It didn’t promote justice for victims, since there were no victims in this case, justtwo consenting parties who met briefly and then went their separate ways. It couldn’t promote respect for the law because the law was extremely selectively applied and led to a ludicrous outcome in any case. Conceivably, my prosecution may have furthered the criminological goal of general deterrence, as there may be people who think twice abouthooking up with a minor (not to mention filming it) after hearing about what happened to me. But what price deterrence? We could deter theft by lopping off the hands of larcenists, as is the practice in Islamic societies, but we don’t do that, because it would violate a competing principle that we in the West claim to hold dear, namely that the punishment must be proportional to the crime. My own punishment represents a gross violation of that principle, and is in fact closer to the Islamic ideal. It is quite remarkable – and I should think alarming – that a person in a supposedly democratic society can earn 30 years in prison
without a single private citizen having comeforward against him to allege harm or request his prosecution. In case you missed this point in my first post, I will reiterate it now: there was no victim’s Impact statement in my case, no testimony from the girl at all. Or her family. Or anyone, besides the feds. Like the British prime minister, I’m serving my term entirely at the pleasure of the government.
I believe that covers all the major bases. Judged by first principles, my prosecution / incarceration was (and is) an ethical travesty. But it was perfectly legal. I would submit that this reveals something terribly important about the nature of law and thelegal system. Nassim Nicholas Taleb has commented on this (“My biggest problem with modernity may lie in the growing separation of the ethical and the legal”), as have many others going back to antiquity.
Unfortunately for me and fortunately for the government, the arguments I have made here are precisely the types of arguments that one is not allowed to make in court, before a jury. One is not permitted to question the legitimacy of the prosecution or the underlying assumptions on which it rests. Had I been allowed to make these arguments I would have run circles around the government’s sanctimonious bullshit. But judges consider that sort of thing to be an attempt at jury nullification and they shut you down immediately if you try it. The First Amendment does not apply in courtrooms, much to the advantage of the US Attorney’s office. That is another glaring defect in our present system that will need to be rectified when the Constitution is rewritten for modern times, with the benefit of hindsight. It’s fundamental: In a free society, a person facing the loss of his liberty must be allowed to say anything he wants in his own defense, and he must be allowed to say it directly to members of the jury who will decide his fate. It really doesn’t get any more basic than that. Am I right or wrong?
Hello again,
It probably won’t surprise you to learn that I consider my prosecution to have beenirrational. In this post I’ll lay out the reasons why, and you can tell me whether you agree or whether you think I ’ve erred. We can also use this as a springboard to a broader discussion of society’s handling of child porn and sex crimes, if you wish. I admit that I’m curious to know how the rationalist community views these topics, and it was that curiosity which led me to post on your forum.
Let’s begin with the foundational principle of “equal justice under law”. This is inscribed on the front of the US Supreme Court, so presumably it is intended to carry some weight in our legal system. Please take a moment to ponder whether my prosecution – when viewed in the totality of the circumstances—advanced or undermined this ideal. Before deciding, consider the following.
At this very moment, there are numerous people roaming around (perhaps in your neighborhood?) who did the exact same things that I did with the girl in this case. Their actions and identities were known to the authorities, yet unlike me they were never prosecuted. Why not? We’ll never know for sure, but it’s likely due to some combination of chanceand human discretion. They were in different districts than I was, and in the Americancriminal legal system each district is empowered to make its own charging decisions. This tends to create disparate outcomes, as illustrated by my case.
Sentencing disparities between similarly situated defendants are relatively well known and much maligned. But the really insidious disparities are the ones you never see, for they are between the people who got ensnared by the system – like me – and the people who engaged in the same conduct but were never caught or never prosecuted – like the others who hooked up with the girl in my case. Their sentences can’t becompared with mine because they never got sentenced in the first place (save for one other individual, who got 2 years less than I did). They are, for all intents and purposes, invisible. If you’re familiar with the work of Tversky and Kahneman, you will recognize which cognitive bias is in play here: WYSIATI. What you see is all there is. To wit, you see me. You don’t see the four guys whom she did the gangbang with. They could be gangbanging some other 16-year-old at this very moment, for all we know. And consider this: In a nation of 340 million, how many people are there who have ever banged a 16-year-old? It must be in the millions, perhaps tens of millions. How many high school students are banging their 16-year-old boyfriend or girlfriend right now? If you live in the suburbs, there’s a very good chance that you’re within a half mile radius of such a person as YOU read this. If you happen to have kids or siblings who are in high school, then you probably have people residing in your house who have done the same things that I did. You’ve heard of “teen sexting”, right? Teen sexting is child pornography. Full stop. Do you see now why my prosecution (andsentence) is deeply problematic from the standpoint of “equal justice”?
If you don’t, that’s alright. It was deeply problematic from every other standpointas well, as I’m about to show.
Next, I’d like you to consider the statute I was charged with violating: 18 USC 2251 (a). Nothing in the text of the statute (read it yourself or take my word for it) would preclude minors from being charged with producing CP. Thus, if you believe in equal enforcement of the laws and you take a “textualist” approach to interpreting statutes, as conservative jurists (i.e., most jurists) claim to do, then you should be in favor of prosecuting minors who produce CP, even if it depicts themselves (again, nothing in the statute militates against this). As applied to my case, this means the feds should have charged the girl with the same crimes as me, since she knowingly produced and distributed CP images of herself on multiple occasions, both with and without the participation of others. Of course, they did not charge her. That’s another strike against “equal justice under law” as well as the legitimacy of textualism.
Now consider the claim, implicit in my prosecution and stated directly in court, that the girl could not have consented to our activities and / or that her stated consent was meaningless, because she was under the federal age of consent at the time. In making this claim, the government was essentially saying that she could not be treated the way an adult would be treated in these circumstances, due to her age. Yet it is well known that in America the government routinely prosecutes minors – often younger than the girl in my case – and charges them “as adults”. Indeed, the prisons of this nation are filled with people serving long sentences for crimes committed when they were juveniles. So. the lesson here appears to be that a minor cannot be treated as an adult by the legal system unless it’s convenient for the government, in which case they can and will be so treated. A blatant and odious double standard.
If you think about it, the notion of a bright-line age of consent is irrational to the point of absurdity. By virtue of this notion, conduct is deemed legal or illegal solely on the basis of when it occurred. The very same act, with the very same people, miraculously transforms from being a major felony to fully legal conduct overnight, in the eyes of the legal system. What other category of crime can that be said about? Certainly, none that I can think of. If I rob, rape, kill, injure, or defraud you, my criminal liability will be the same whether I commit the act today, next month, or next year. As it should be. But when it comes to those crimes to which age of consent applies, suddenly the distinction between today and next month or next year makes all the difference in the world. For instance, I wouldn’t be in prison if I’d met the girl a year-and-a-half later than I did. Every single other detail of our interaction could have remained exactly the same except for the calendar date. That ’s patently absurd, but that’s age of consent for you. There’s a strong case to be made that age of consent, as currently applied by our legal system, is one of the greatest absurdities evercodified into law. I well understand that society doesn’t want adults having sex with children, but surely, we can do better than this bright-line idiocy. Why not use a simple competency / maturity test instead?
From a just desserts standpoint my punishment is completely indefensible, because no one ever claimed to have been harmed by my actions. If we go by JS Mill’s harm principle, I should never have been prosecuted. To those who suggest that the girl may at somepoint come to regret the existence of the content I produced, I can tell you I considered that possibility and took steps to mitigate any future harm by anonymizing all of the images I sent out. She’s unrecognizable there and she knows it, so I very much doubt that she has lost or will lose any sleep over it. I have every reason to believe she moved on from this a long time ago, even before my arrest. After all, she started a new life in NYC after our meetings were concluded, just as I started a new life in LA.
Then the feds came knocking and insisted on turning our two hookups into a felony. They created the narrative of a crime as well as the roles of victim and perpetrator. It was their idea entirely – not mine, not the girl’s and not the public’s. Grand juries were originally conceived to guard against this sort of thing, but we know how that turned out (*cough* ham sandwich *cough*). In the future – that is, après national divorce – it will probably be necessary to return to privately run prosecutions, which were the norm during the founding era. Government actors simply have too many perverse incentives to be entrusted with the power to prosecute citizens.
Next, we have the familiar argument, favored by conservatives, which essentially holds that “the law is the law and it must be enforced whether it’s rational or not, or else society will descend into anarchy”. To this I would retort that the law isn’t always enforced, and this is no accident but a deliberate policy decision. As Justice Scalia wrote in Castle Rock v. Gonzales (2005), “A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes”. In fact,law enforcement in this country is almost entirely at the discretion of police and prosecutors. Every single day, they decide which cases and persons to pursue and which to pass on – anarchy does not result. As Attorney General (later Supreme Court Justice) Robert Jackson remarked all the way back in 1940, “Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases… If the [DOJ] were to make even a pretense of reaching every probable violation of federal law, ten times its staff would be inadequate”. If that was true in 1940, how much truer must it be today? It is my contention that the authorities should have used their ample discretion to pass on this case. Surely the Department of Homeland Security could have found something better to do than chasing down a slutty teenage girl and her paramours.
Finally, there is the public safety argument. If you believe that my actions make me a potential threat to minors, you might find my incarceration warranted on the grounds of preventing some future harm. Of course, this sets up a dilemma, as I am no more capable of proving that I won i t harm minors in the future than you are capable of proving that I will. We could rely on actuarial instruments, the most prominent onebeing STATIC-99, but these come with their own set of problems. As always, the devil is in the details. All I can really do (and did do) is point out what I consider to be relevant factors that bear upon my sexual proclivities and risk of reoffending, such as the following: 1) A 16-year-old isn’t a 6-year-old. It’s not the same ballpark, not even the same league; 2) The 16-year-old in this case was no ordinary 16-year-old, and I would never have even met her if she hadn’t made a dedicated effort to pursue adults for sex online; 3) Most so called “child predators” don’t move across the country to pursue a career in the adult film / sex industry. What I was doing in LA had nothing to do with minors, and the feds knew it; and so on. We’ll leave for later the important question of whether such public safety concerns are truly warranted, premised as they are on the assumption that all sex experienced by anyone under 18 is inherently harmful (as you may suspect, I do not share this assumption).
So, there it is. As far as I can tell, my prosecution served no purpose other than to give some government bureaucrats another notch on their belts. I was a warm body fed into the machinery of the criminal legal system and the prison-industrial complex. Job security for cops, judges, and jailers. What else did my prosecution achieve? It didn’t promote justice for victims, since there were no victims in this case, justtwo consenting parties who met briefly and then went their separate ways. It couldn’t promote respect for the law because the law was extremely selectively applied and led to a ludicrous outcome in any case. Conceivably, my prosecution may have furthered the criminological goal of general deterrence, as there may be people who think twice abouthooking up with a minor (not to mention filming it) after hearing about what happened to me. But what price deterrence? We could deter theft by lopping off the hands of larcenists, as is the practice in Islamic societies, but we don’t do that, because it would violate a competing principle that we in the West claim to hold dear, namely that the punishment must be proportional to the crime. My own punishment represents a gross violation of that principle, and is in fact closer to the Islamic ideal. It is quite remarkable – and I should think alarming – that a person in a supposedly democratic society can earn 30 years in prison
without a single private citizen having comeforward against him to allege harm or request his prosecution. In case you missed this point in my first post, I will reiterate it now: there was no victim’s Impact statement in my case, no testimony from the girl at all. Or her family. Or anyone, besides the feds. Like the British prime minister, I’m serving my term entirely at the pleasure of the government.
I believe that covers all the major bases. Judged by first principles, my prosecution / incarceration was (and is) an ethical travesty. But it was perfectly legal. I would submit that this reveals something terribly important about the nature of law and thelegal system. Nassim Nicholas Taleb has commented on this (“My biggest problem with modernity may lie in the growing separation of the ethical and the legal”), as have many others going back to antiquity.
Unfortunately for me and fortunately for the government, the arguments I have made here are precisely the types of arguments that one is not allowed to make in court, before a jury. One is not permitted to question the legitimacy of the prosecution or the underlying assumptions on which it rests. Had I been allowed to make these arguments I would have run circles around the government’s sanctimonious bullshit. But judges consider that sort of thing to be an attempt at jury nullification and they shut you down immediately if you try it. The First Amendment does not apply in courtrooms, much to the advantage of the US Attorney’s office. That is another glaring defect in our present system that will need to be rectified when the Constitution is rewritten for modern times, with the benefit of hindsight. It’s fundamental: In a free society, a person facing the loss of his liberty must be allowed to say anything he wants in his own defense, and he must be allowed to say it directly to members of the jury who will decide his fate. It really doesn’t get any more basic than that. Am I right or wrong?