Sometimes I can shorten an opinion by summarizing it, or add a different perspective, or offer a little critique of an argument. But sometimes, the original author says things so well that there's nothing that can be done to improve on what's already there.
This is one of those latter occasions.
Judge Hawkins concurs, and writes the following:
"Michael Laursen stands convicted of the “use” of a minor
to engage in sexually explicit conduct for the purpose of
producing visual depictions of that conduct and is currently
serving the fifteen-year mandatory minimum sentence the
statute requires. The photos in question were taken in the
course of an ill-advised, but perfectly legal, relationship
Laursen had with a young woman above the age of consent
under Washington law. The record shows no evidence that
Laursen distributed, transferred or otherwise displayed the
images to anyone outside that relationship. In this respect,
his situation is no different than the thousands of similar
photos taken every day by seventeen-year-old college students
engaged in intimate, consensual relationships. The
government admits the theory of prosecution here could be
used to prosecute anyone snapping a photo showing
consenting individuals engaged in intimacy.
This is where I differ from my friends in the majority. To
prevent the statute from being overbroad and
unconstitutionally vague, I would adopt a narrower
construction of the term “uses” in the statute. The
government’s construction implies that one “uses” the minor
much as one “uses” a camera to take the photograph, and
their mere presence in the photo could suffice. As
the majority acknowledges, “uses” has a number of
meanings in ordinary language. To me, the one most likely
applicable here is: “to take unfair advantage of; exploit.” [Cite] Although I agree with the
majority that “a word is known by the company it keeps,”
Flores, 729 F.3d at 915, in my view, the rest of the terms in
the statute—employs, persuades, induces, entices or
coerces— suggest that the defendant must have exerted some
sort of improper influence on the minor for the purpose of
producing the visual depiction of sexual conduct.
Whether that something more has been shown here is
where I agree with my colleagues. At the time of the
relationship, Laursen was forty-five years old and J.B. was
only sixteen. While she was above the legal age of consent,
this very significant age difference, combined with the other
facts of this case—including her vulnerability from an
already abusive relationship with her relatives, and evidence
demonstrating that Laursen convinced J.B. that he was her
“hero” and “mentor,” all the while providing her with drugs
and moving her from motel room to motel room and into the
homes and bedrooms of strangers—provides sufficient indicia
of a coercive or exploitative element to satisfy even the more
narrow definition of “uses” I propose here.
Thus, I would require the government to show some
“taking unfair advantage of” the minor to establish “uses”
under this statute (where no other statutory element is
present), but otherwise I concur in affirming Laursen’s
conviction and sentence on the facts of this case."
Well spoken, in my view.
