You Can Have Sex With Them; Just Don't
Photograph Them
A former cop's 15-year prison sentence
illustrates the absurdity of federal child porn laws.
Radley Balko | February 28, 2011
In the spring and summer of 2006, Eric Rinehart, at the time a
34-year-old police officer in the small town of Middletown, Indiana,
began consensual sexual relationships with two young women, ages 16 and
17. One of the women had contacted Rinehart through his MySpace page. He
had known the other one, the daughter of a man who was involved in
training police officers, for most of her life. Rinehart was going
through a divorce at the time. The relationships came to the attention of
local authorities, and then federal authorities, when one of the girls
mentioned it to a guidance counselor.
Whatever you might think of Rinehart's judgment or ethics, his
relationships with the girls weren't illegal. The age of consent in
Indiana is 16. That is also the age of consent in federal territories.
Rinehart got into legal trouble because one of the girls mentioned to him
that she had posed for sexually provocative photos for a previous
boyfriend and offered to do the same for Rinehart. Rinehart lent her his
camera, which she returned with the promised photos. Rinehart and both
girls then took additional photos and at least one video, which he
downloaded to his computer.
In 2007 Rinehart was convicted on two federal charges of producing child
pornography. U.S. District Court Judge David Hamilton, who now serves on
the U.S. Court of Appeals for the 7th Circuit, reluctantly
sentenced Rinehart
to 15 years in prison. Thanks to mandatory minimum sentences, Hamilton
wrote, his hands were tied. There is no parole in the federal prison
system. So barring an unlikely grant of clemency from the president,
Rinehart, who is serving his time at a medium-security prison in
Pennsylvania, will have to complete at least 85 percent of his term
(assuming time off for good behavior), or nearly 13 years.
Hamilton was not permitted to consider any mitigating factors in
sentencing Rinehart. It did not matter that Rinehart's sexual
relationships with the two girls were legal. Nor did it matter that the
photos for which he was convicted never went beyond his computer.
Rinehart had no prior criminal history, and there was no evidence he had
ever possessed or searched for child pornography on his computer. There
was also no evidence that he abused his position as a police officer to
lure the two women into sex. His crime was producing for his own use
explicit images of two physically mature women with whom he was legally
having sex. (Both women also could have legally married Rinehart without
their parents' consent, although it's unclear whether federal law would
have permitted a prosecution of Rinehart for photographing his own
wife.)
"You can certainly conceive of acts of producing actual child
pornography, the kind that does real harm to children, for which a
15-year sentence would be appropriate," says Mary Price, general
counsel for the criminal justice reform group Families Against Mandatory
Minimums. "But this is a single-factor trigger, so it gets applied
in cases like this one, where the sentence really doesn't fit the
culpability."
In his
sentencing
statement, Hamilton urges executive clemency for Rinehart. He points
out that under federal law Rinehart received the same sentence someone
convicted of hijacking an airplane or second-degree murder would receive.
For a bank robber to get Rinehart's sentence, Hamilton writes, "he
would need to fire a gun, inflict serious bodily injury on a victim,
physically restrain another victim, and get away with the stunning total
of $2.5 million." (You might also compare Rinehart's punishment to
the treatment given former Elkhart, Indiana, police officer William Lee.
Lee, who had a history of "inappropriately touching" women
while on the job, was recently
fired
for using the threat of an arrest warrant to coerce a woman into having
sex with him. He was never criminally charged.)
Hamilton is not the first federal judge to express frustration over
federal child porn sentencing laws. In May 2010, The New York
Times
profiled U.S. District Court Judge Jack Weinstein, who after 43 years
on the bench has essentially gone rogue, twice throwing out convictions
of a man convicted of receiving child pornography because of the
five-year mandatory minimum sentence attached to the offense. Weinstein
has also indicated that in future child porn cases he will disregard the
federal rules of criminal procedure and inform his juries of the
sentences defendants will get if convicted.
Rinehart was convicted of producing child pornography. But in cases where
a suspect is charged with receiving child pornography, prosecutors need
not even show intent. The mere presence of the images on the defendant's
computer is enough to win a conviction. "Each image can be a
separate count, so these sentences can add up pretty quickly," Price
says. "And with a video, each frame can count as a separate image.
So if you accidentally or unknowingly download a video that's later
discovered on your computer, you could be looking at a really long
sentence."
In a 2010
survey (PDF) by the U.S. Sentencing Commission, 71 percent of the 585
federal judges who responded thought the five-year mandatory minimum for
receiving child pornography was too harsh. Just 2 percent thought it was
too lenient. Only the mandatory minimum for crack cocaine, which has
since been reduced, met with wider disapproval.
"When judges don't abide by sentencing guidelines, the logical
conclusion would be that the guidelines are flawed, that they should be
revised to better reflect culpability," Price says. "Instead,
the reaction from Congress is too often to make the guidelines mandatory,
or to make the sentences even harsher."
It could actually have been worse for Rinehart. Under federal law, he
could have faced up to 25 years in prison. In exchange for a guilty plea,
prosecutors agreed to seek only the minimum sentence. Unfortunately for
Rinehart, that plea agreement also prevents him from challenging his
conviction or sentence. His only hope for early release is executive
clemency. Given the
clemency records of the last two administrations, that does not seem
likely.
Rinehart's case also illustrates the advantages of federalism.
Traditionally, criminal law has been left to the states. Age of consent
in particular is an issue that is best decided at the state or local
level, where lawmakers can set boundaries that reflect local values. The
1984 federal law that Rinehart was charged with breaking, which raised
the federal age of consent for explicit images from 16 to 18, was passed
under the authority of the Commerce Clause. According to the prevailing
interpretation of the clause, the federal government has a legitimate
interest in regulating the interstate sale and distribution of child
pornography (by prohibiting it) to prevent the exploitation of
children.
But the women Rinehart photographed were not children. Under Indiana (and
federal) law, they were adults. Furthermore, Rinehart not only was not a
producer of actual child pornography; he was not even a consumer. His
decision to photograph and upload to his computer photos and video of the
two women had no effect whatsoever on the interstate market for child
pornography.
You could argue that it makes sense to have a higher age of consent for
sexually explicit photos than for sexual activity because photos can be
preserved and distributed. That means one bad decision can cause lasting
harm, something a 16- or 17-year-old disoriented by love or passion may
not be mature enough to consider.
But as Hamilton points out in his sentencing statement, there is no
indication that Congress had this rationale in mind when it raised the
age of consent in 1984. Instead the congressional record indicates the
reason for the change was that prosecutors usually are not able to track
down the women depicted in explicit photos to verify their ages. With the
cutoff at 16, prosecutors were having problems winning convictions if the
girls depicted in the images showed any signs of puberty. Raising the age
to 18, a House committee reported, "would facilitate the prosecution
of child pornography cases and raise the effective age of protection of
children from these practices probably not to 18 years of age, but
perhaps to 16."
In Rinehart's case, however, there is no question about the age or
identity of the "victims." So why did Assistant U.S. Attorney
Steven DeBrotawho has
won awards for his efforts to break up actual child pornography
ringsdecide to turn Rinehart's questionable judgment into a federal
felony?
"This seemed like it was all going to be sorted out locally,"
says Stacy Rinehart, Eric Rinehart’s sister. "They had a deal worked
out where they were going to charge Eric for some sort of misconduct, and
he'd do time in a local jail away from other inmates. Police officers
don’t tend to do very well in prison. But then the FBI got involved. And
no one really knows why. I can only guess it was because Eric was a
police officer when all this happened, and maybe they thought that made
what he did worse. But he had a good record, and they never put on any
evidence that he abused his position."
DeBrota didn't return my call requesting comment. But the fact that a
federal prosecutor would pursue a case like this one demonstrates the
problem of taking sentencing discretion away from judges. It is true
that, technically, Rinehart violated federal law. But no reasonable
person would call him a child pornographer, and it seems unlikely that
Congress was thinking of people like him when they raised the federal age
of consent for sexually explicit images. Putting him away for 15 years
hardly feels like justice.
Radley Balko is a senior editor
at Reason magazine.
http://reason.com/archives/2011/02/28/you-can-have-sex-with-them-jus
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