Tuesday, January 31, 2017

US v. Laursen, No. 14-30244 (1-30-17)(Rawlinson & Callahan; concurrence by Hawkins).  This is a production and possession of child pornography case.  The 9th affirms convictions for "use" of a minor, despite the fact that the 45 year old defendant had a legal sexual relationship with the 16-year old minor under state law.  The taking of pornographic photos of the 16 year old still violated federal and state law.  The 9th acknowledged there was no physical coercion, the relationship was consensual, and the photos were not shared or transferred to others.  The 9th though held that taking such photos was "use," and Congress can hold such photos to be child porn. 

Concurring, Hawkins would impose a narrower test: the defendant had to exploit or take an unfair advantage of the minor.  Otherwise, Hawkins fears that otherwise every sexually explicit photo snapped by 17 year olds in a relationship could be subject to prosecution, and the 15 year mandatory minimum.  Hawkins, under the facts, would find that the defendant had exploited the minor with his "mentorship," drugs, and transportation.

The decision is here:



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