(CN) – In oral arguments before the Eighth Circuit on Tuesday, the attorney for a former Army National Guard sergeant put pressure on child-pornography exclusions of the First Amendment in a case involving explicit videos the sergeant made of a 16-year-old girl with whom he had a consensual sexual relationship.
While the high school student legally consented to having sex with 37-year-old Matthew Rouse, he was arrested and later pleaded guilty to distributing child pornography for sending the videos to her cellphone. Rouse was sentenced to eight years in prison in the plea deal.
The case exposes a gray area in criminal law when it comes to modern technology habits of teens, argued Rouse’s attorney Jennifer L. Gilg of Omaha, Nebraska. Calling the recording and texting of sexual acts a “prevalent practice” that teenagers engage in every day, Gilg sought to define child pornography laws as a force intended to stop sexual abuse of minors – that shouldn’t include the consensual transmission of images.
“In this case there was no abuse. The underlying conduct was legal,” Gilg said, pointing out the age of consent in Nebraska is 16 – the age of the girl when when she met Rouse at Omaha hotels for sex over a five-month period. Gilg argued the sexual acts Rouse engaged in, along with images taken during those acts, deserve First Amendment protection.
She also said Rouse and the girl have rights to sexual privacy under the Fifth Amendment.
U.S. Circuit Judge Steven M. Colloton, a George W. Bush appointee, appeared uneasy with this reasoning.
“Does it turn on whether the child agrees to be photographed?” Colloton asked, noting Rouse’s guilty plea was for a crime that has nothing to do with consent. “The only crime he’s charged with is making the image,” Colloton said.
Assistant U.S. Attorney Michael P. Norris repeatedly argued Gilg’s arguments are not supported by current law, regardless of perceived social norms.
“Whether the video was distributed outside their relationship is immaterial,” Norris said.
He added Nebraska’s age of consent does not apply to federal child pornography laws and that underage teenagers have been convicted of possessing child pornography for having nude photographs of themselves on their cellphones. According to his reasoning, pornographic videos of minors are damning, regardless of the intended audience.
“The state [age of consent] does not overrule the age of majority in federal law,” he said.
Norris cited a trio of opinions – including several written by the three judges on the panel – that supported excluding minors from speech and privacy protections and that Rouse, as an adult, should not be allowed to possess nude photographs of a minor.
In her rebuttal, Gilg seemed to make some headway regarding social norms and what she called the “draconian” eight-year sentence her client received.
Senior Judge C. Arlen Beam, a Ronald Reagan appointee, remarked that Rouse’s sentence for distributing the videos was “somewhat nonsensical” and “troublesome” for what he sees as an “innocuous offense.” Beam noted Rouse and the teenager only sent the videos to each other and did not disseminate them publicly.
However, Gilg seemed to be working uphill most of the hearing when she tried to more narrowly define child pornography and explain why case law excludes free speech and sexual privacy protections. U.S. Circuit Judge Bobby Shepherd – also a George W. Bush appointee – rounded out the panel, which did not indicate when it would rule.
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