February 11, 2010

The Legal Primacy of Sex

Justin Katz

This from the court that blazed the path of determining that the word "marriage" can't mean, in the law, what it's always been known to mean:

Matt Zubiel of Beverly was arrested in 2006 after driving to Marshfield to meet with the girl, who really was a Plymouth County Deputy Sheriff, authorities said. The next year, he was convicted of four counts of attempting to disseminate harmful material to a minor.

But in his appeal, Zubiel argued that the "harmful material" banned under the law didn't include sexually explicit instant messages, and the Supreme Judicial Court agreed on Feb. 5. ...

In his appeal, Zubiel argued that though the law listed more than a dozen examples of the obscene "matter" that adults can't give to minors, it didn't include instant messages.

Look, this appears to have been the correct ruling, according to the law, and we can take some comfort in the fact that the arrest was based on a sting, not an actual attempt to abuse a minor, and now the law will likely be updated. But doesn't seem as if the decisions always break in a particular direction when courts decide how literally to take the law?

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No, actually it doesn't seem that way.

Posted by: Pragmatist at February 11, 2010 7:12 PM

"But doesn't seem as if the decisions always break in a particular direction when courts decide how literally to take the law?"

Yes, I think they break in the direction of freedom. Every law restricts our freedom, even the freedom to do morally offensive things. Where the law specified those matters which
would be criminal acts, any behavior not specified should not be inclued. Making laws is a legislative function, it is not given to the courts to expand them (ok, I know they sometimes do).

One would like to see the content of the "sting" messages. As the police are known to toss a little cocaine in a Porsche in order to cease it (the money received stays local), I am curious about "sting" operations.

"The then-25-year-old Zubiel began having online conversations with Marino by instant message. He eventually told her he'd like to teach her how to perform oral sex and was arrested at a Marshfield apartment complex where he had arranged to meet her, according to court papers. Police said Zubiel admitted "the thought was there for him to have sex with this minor.""

As we all know from President Clinton, the described activity is not "sex".

Posted by: Warrington Faust at February 11, 2010 8:59 PM

Mr Zubiel must be a Democrat, If he was a Republican, he would have been looking for young boys,

Posted by: Manuel at February 11, 2010 10:13 PM

I don't have the law on hand, but having a problem with 'instant messages' not being 'harmful material' seems a stretch.

Are _written words_ ever 'harmful material'? Is it more dangerous to define some kinds of written words as 'harmful material' than it is to defend the existence of and access to any sort of written word? If sexual instant messages are 'harmful', what about 'sexual books' parents leave under beds, or the sexual deviance displayed in the old testament?

I don't want to defend this guy, he's obviously a creep, but maybe the method of catching him and the pretense of the charges are flawed.

I know that one of the issues the ACLU had with one of the new trafficking laws was that it potentially treated schoolkids passing naked stick-figure drawings to each other the same way it treated dirty old men with roomfuls of original polaroids... After all, both are 'depictions of naked minors', and the 'prurient interest' wording is in the eye of the beholder.

In the interest of making a perfect society, we've made some terrible mistakes. As far as I know, there's no legal difference in RI between having a joint of pot on you and having two pounds. There's no legal difference between an eighteen year-old sleeping with a consenting fifteen year-old at a party and a child-rapist having their way with your ten year-old. No difference between a die-hard child pornographer and a teenager sending her boyfriend a racy multimedia text.

Normally I would say that it makes sense to word laws very strictly, but with AGs under pressure to get more arrests at any cost, and with political offices in their futures, they often press charges when charges ought-not be pressed. The media is always happy to oblige.

Personally, I would like to see AGs prevented from seeking political office for a period of ten years after serving their terms; it would remove a lot of the pressure that causes them to pursue silly cases.

Posted by: mangeek at February 13, 2010 9:17 PM

OK. Upon the review, there -are- differences in the law, but they're not reflective of the relative severity (or inconsequentiality) of the 'crimes'.

The sexters and party-goers could still face prison time and registration as sex offenders. That's silly.

Trusting an AG to not press charges in those cases is also silly.

Criminalizing conversations and communications is beyond silly.

Busting someone with intent to sleep with a minor? not silly. Busting him for 'distributing harmful material to a minor?' Silly and fundamentally misguided.

Posted by: mangeek at February 13, 2010 9:33 PM
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