Illinois Supreme Court classifies images of minor during legal, sexual activity to be child pornography, dissent applies Stevens

In People v. Hollins, Docket No. 112754 (Ill. 2012), the Illinois Supreme Court held that images taken of a 17-year-old during sexual activity were to be classified as child pornography. A dissenting opinion argued that the Supreme Court's decision in Stevens requires otherwise as the sexual activity was legal under Illinois law.

The defendant, a 32-year-old man, was convicted of violating the Illinois child pornography statute after taking photographs of his 17-year-old girlfriend while the two were engaged in sexual activity. The girlfriend's mother found the images and reported them to police.

On appeal, the defendant argued that because the age of consent for sexual activity in Illinois is 17, the child pornography statute extending until the child turns 18 does not protect children such as his girlfriend from sexual exploitation or abuse. The court, however, found held:

[T]here are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity. The consequences of sexual activity are concrete, and for the most part, readily apparent to teenagers.... The dangers of appearing in pornographic photographs or videos are not as readily apparent and can be much more subtle.

The defendant also argued that the statute violates due process because it does not provide fair notice of this "illogical inconsistency." The court, however, held that "ignorance of the law is no defense," and regardless, the defendant is a convicted sex offender and "has prior experience with the legal system and sex offenses in particular."

Another argument presented was that the law violates equal protection as it prohibits "the sex partners of such people from photographing such otherwise lawful, private, sexual activity." Again, the court found that only a rational basis is required and that one exists here.

In a dissent, Justice Burke wrote that the Supreme Court's 2010 decision in United States v. Stevens (click here for a casenote on Stevens) held "that there is no first amendment exception for child pornography, per se." Stevens found unconstitutional a statute banning the creation of depictions of cruelty to animals, primarily targeting "crush videos."

Thus, applying Stevens, Burke argued that because the defendant's sexual conduct was legal, the photographs should be deemed legal as well and not classified as child pornography.