Let me reiterate -- and expand upon -- what Justice Rivera holds today in this opinion.
(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.
(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One.
Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls". Justice Rivera is exactly right on that point.
I also want to add one other thing. The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.
There's a name for that. And it's not "justice".
