Tuesday, June 07, 2022

U.S. v. Mendez (9th Cir. - June 7, 2022)

It's weird sex video week thus far in our particular locale.

Yesterday, it was secret up skirt videos and the like. Today, it's putting secret camera in the bedroom of a fourteen year old girl so you can watch her masturbate. Both are incredibly poor decisions that get you put in prison. Today, in federal prison.

It's also another statutory interpretation case. As usually applied, the statute says it's a (big) federal crime to "employ, [] persuade, induce, entice or coerce" a minor to create kiddie porn. But that didn't happen in the present case, since the minor didn't know she was being filmed.

The word I left out in the brackets, however, is the word "use".

Does that make a difference?

I'm not a certain, to be honest, what it means to "use" a minor "to engage in sexually explicit conduct for the purpose of" producing kiddie porn. It's common sense what it means to "persuade" a minor to do so. But "use"? That's just a weird word to employ in this context.

Given the other words in the relevant list, I would have facially thought that what Congress was getting at is that you can't "cause" the minor -- in one way or another -- to engage in sexual conduct. Which didn't happen here, since she was doing it on her own; she just didn't know she was being taped.

Apparently, at least some of the members of today's panel (Judges McKeown, Christen and Miller) were at least potentially of a similar view. The opinion says, in relevant part -- and I really like the panel's forthrightness here -- that "writing on a clean slate, some of us might interpret § 2251(a) differently by, for example, concluding that the statutory language requires the perpetrator to cause the minor to “to engage in sexually explicit conduct.”

But the panel unanimously agrees that Ninth Circuit precedent says otherwise. (Though they might be interpreting that precedent a bit broadly, TBH.) So the conviction gets affirmed.

By the way, the published opinion doesn't mention it, but Mr. Mendez gets sentenced to 20 years in prison.

Did I mention that the decisions this week have been incredibly poor ones?