circle jerk
So back in may there was yet another in a long string of ‘dear god, our freedoms are being destroyed’ panic atacks. This time over an oregon law banning the sale of porn to those under 18. At the time I didnt think much of it. A law banning the sale of guns to those under 18 isnt a big deal. A law banning the sale of alachoal to those under 18 isnt a big deal. A law banning the sale of tobaco to those under 18 isnt a big deal. So a law banning the sale of porn to those under 18 I I dont exactly think is ‘proof’ that we live in the most opresive purticianl police state of all time.
Recently I uncovered some new info that got me intrested in researching the issue a bit more. Turns out its even less of a problem than what I had originaly thought. It wasent directed at booksellers. It was directed at sexual predators who use porn to try and ‘turn out’ their victims. And it wasent directed at those under 18. It was directed at those under the age of 13.
For the record, the law is ORS 167.054 and was updated by House Bill 2843. Here it is …..
167.051 Definitions for ORS 167.054 and 167.057.
(1) “Child†means a person under 13 years of age.
(2) “Furnishes†means to sell, give, rent, loan or otherwise provide.
(3) “Minor†means a person under 18 years of age.
(4) “Sexual conduct†means:
(a) Human masturbation or sexual intercourse;
(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
(c) Penetration of the vagina or rectum by any object other than as part of a medical diagnosis or as part of a personal hygiene practice; or
(d) Touching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female.
(5) “Sexually explicit material†means material containing visual images of:
(a) Human masturbation or sexual intercourse;
(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; or
(c) Penetration of the vagina or rectum by any object other than as part of a personal hygiene practice.
167.054 Furnishing sexually explicit material to a child.
(1) A person commits the crime of furnishing sexually explicit material to a child if the person intentionally furnishes a child, or intentionally permits a child to view, sexually explicit material and the person knows that the material is sexually explicit material.
(2) A person is not liable to prosecution for violating subsection (1) of this section if:
(a) The person is an employee of a bona fide museum, school, law enforcement agency, medical treatment provider or public library, acting within the scope of regular employment; or
(b) The person furnishes, or permits the viewing of, material the sexually explicit portions of which form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation.
(3) In a prosecution under subsection (1) of this section, it is an affirmative defense:
(a) That the sexually explicit material was furnished, or the viewing was permitted, solely for the purpose of sex education, art education or psychological treatment and was furnished or permitted by the child’s parent or legal guardian, by an educator or treatment provider or by another person acting on behalf of the parent, legal guardian, educator or treatment provider;
(b) That the defendant had reasonable cause to believe that the person to whom the sexually explicit material was furnished, or who was permitted to view the material, was not a child; or
(c) That the defendant was less than three years older than the child at the time of the alleged offense.
(4) In a prosecution under subsection (1) of this section, it is not a defense that the person to whom the sexually explicit material was furnished or who was permitted to view the material was not a child but was a law enforcement officer posing as a child.
(5) Furnishing sexually explicit material to a child is a Class A misdemeanor.
The law is a lot less ‘vague’ and overly broad’ than one is led to believe from reading the news articles and press statements summarizing it. So knowing what the law actually says, lets examine some of the ‘this law is vague and overly broad’ panic atacks used againt it.
First I have to wonder why booksellers are involved in the case at all, as ’sexual explicit materials’ is clearly defined as visual images and not as writen words in part (5) of the definitions. This also pokes holes in the notion that the book “Forever” by Judy Blume could initiant a criminal case. Guess the rally cry of ‘the evil government is banning books’ was too good a sound bite to pass up.
Another panic induced sound bite is that this law would ban the distribution of safe-sex educational material. That somehow the distributer woudl be libeal ‘even if the material is in a textbook’. However, section (3)(a) says that its ok to distribute material that is for sex education.
Just in general there is the fear that what gets defined as ’sexualy explicit’ has so wide a range it could apply to nearly anything. Even material that is constutionaly protyected under the ‘miller test’. And since this law dosent match exact word for word the scope of the miller test, there may exist things that the miller test says are legal but this orogen law says are iligeal. But I find that to be highly unlikely since the orogen law has a SMALLER scope. The miller test ocationaly banns some writen material and the orgon law bans no writen material. The miller test can wind up banning things that have no sexual contact and the orogon law bans nothing unless it has sexual content.
But what about a boyfriend girlfriend sharing a playboy magazine together where he is 1 day after his 18th birthday and she is 1 day under her 18th birthday. Wouldent they be unfairly targeted under this law since it would be an ‘adult’ giving sexualy explicit material to a ‘child’? Well the law as writen has mutiple difrent areas where this wouldent hold. First of all, a playboy is visual, however it dosent fall within the scpe of anything listed under section (5) of definitions since there is no contact. Second, this law is only for children (under 13) not minors (under 18). Minors are only mentioned in the related statute of 167.057 dealing with actual inducing of a minor to sexual activity rather than just mearly providing material. And third, there are exemptions in the law if the two people are close in age as outlined in (3)(c).
Ah! But what about some 12 year old that wanders into a bookstore and manages to grab a copy of Hustler (shows penetration) and leafs through it. Wouldent they be guyinty under this law for providing sexualy explicit materials to a child? No again. Although the age range is right and the ’sexualy explicit material’ clause cuts the mustard, the child took it of their own accord. It wasent ‘provided’ to them no matter how much you attempt to weazel the word ‘provide’. And besides, section (1) states that the it had to have been intentionaly furnished. Not unintentionaly furnished.
Now the tricky one. Intent. The panic is that this law makes no alowences for the intent of the giver. It dosent matter of the person providing sexualy explicit material to a child is doing it for reasons of ‘grooming’ their victim of child abuse, or if they are doing it for non-predatory reasons like safe-sex education. But just think for a moment what the uproar woudl be if there WAS a provision for intent. Guarenteed that the new complant wold be ‘thought crime’ and that the law is targeting people based on the total unknown of what was gfoin in inside their brain.
So far from being ‘vague and overly broad’, this law is very clear, to the point, well worded, limited in scope, and will not accedently get people caught in its net who werent the original target of the law. Quite an acomplishement considering that ‘vague and overly broad’ seems to be as frequently used catchphrase as ‘please wont someone think of the children’. Who could have done such an exelent job drafting this legestlation?
….. here is where it gets wierd …..
Well, primaraly it got it start with Andy Olson back in 2006. Even in the earlist drafts, there was cooperation with civil liberties groups to make sure the law was not overly broad. Objections to the bill were clearly spelled out ahead of time and lawmakers worked for nearly a year and a half to make sure the law was corect. And probably most strange, according to Greg Macpherson (one of the bills authors) the concerns from the ACLU were spicificly included in the bill.
So in other words, the ACLU is acusing of being ‘badly worded’ a bill that the ACLU helped to draft.
For every moral panic pused foward with the catch phrase ‘please wont someone think of the children’ there is a counter-moral panic pushed foward with the catch phrase ‘vague and overly broad’.