Friday, June 20, 2014

Sexting, Sentencing and the "Consensual Sexual Relationship"

On March 11, 2013, the Department of Justice “filed a one-count information . . . against John Bradley Nash” which charged that “on or about June 28, 2012, possessed child pornography” in violation of 18 U.S.Code § 2252A(a)(5)(B).  U.S. v. Nash, 2014 WL 868628 (U.S.District Court for the Northern District of Alabama 2014). “On April 29, 2013, Mr. Nash pled guilty to that charge.”  U.S. v. Nash, supra. You can, if you are interested, read more about the case in the news story you can find here.  
Nash was twenty-two years old when this federal judge sentenced him.  U.S. v. Nash, supra.  In this opinion, the U.S. District Court Judge who has the case explains why she sentenced Nash to “60 months probation with special conditions.”  U.S. v. Nash, supra. She notes that “[t]he court imposes this unusual sentence because of unusual circumstances.”  U.S. v. Nash, supra.
As to the facts in the case, the judge explains that
[a]s a result of the execution of a sealed warrant and the review of [Nash’] computer and cell phone, investigators found images of 16–year–old female E.L. on Nash's cell phone. These four images showed E.L. involved in lewd and lascivious behavior that qualifies as child pornography. 

During an initial interview, E.L. admitted that she was in a consensual sexual relationship with Nash and that she took the pictures of herself and sent them to Nash. During a subsequent interview, E.L. stated that Nash persuaded her to take the pictures of herself but Nash denies that persuaded E.L. to take the pictures.
U.S. v. Nash, supra.  In a footnote, the judge points out that “ten images were found on Nash's phone, but six of those images were duplicates of the four different images.” U.S. v. Nash, supra. 
Nash was sentenced under the U.S. Sentencing Guidelines, which governs sentencing in the federal system. As Wikipedia explains, Guidelines sentencing is “based primarily on two factors:  1. the conduct associated with the offense (the offense conduct, which produces the offense level) [and]  2. the defendant's criminal history (the criminal history category)”.  This site provides an overview of the process, which includes a presentence report and a sentencing hearing, both of which occurred in this case.
In her opinion, the judge notes that “[a]ccording to the presentence report, the base offense level of 32 was calculated” through the following process:
`The guideline for 18 U.S. Code § 2252A(a)(5)(B) offenses is found in . . . § 2G2.2 of the guidelines. However, according to the cross reference at § 2G2.2(c)(1), if the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, § 2G2.1 is to be applied if the resulting offense level is greater. [Nash] caused and requested E.L. to send images of herself involved in lewd and lascivious behavior. Therefore, the base offense level is 32 pursuant to § 2G2.1(a), which is greater than that calculated at § 2G2.2.’
U.S. v. Nash, supra (quoting Presentence Investigation Report).
She also explained that after Nash objected to the finding above,
the court found he did not admit facts that supported the applicability of § 2G2.2(c)(1); the Government offered no testimony on these disputed facts. Therefore, the court did not apply that provision without evidence from which to make a factual determination. Instead, the court applied the base offense level from § 2G2.2(a)(1), which is 18, because [Nash] was convicted of a violation of 18 U.S. Code § 2252A(a)(5)(B).

Two levels were added according to § 2G2.1(b)(2)(A) because the offense involved sexual contact; one of the four photos showed E.L. inserting her finger into her vagina. No other enhancements applied, so the adjusted offense level was 20.  Nash received the maximum of three levels reduction for acceptance of responsibility, resulting in a total offense level of 17. Combined with a criminal history category of I, based on a criminal history score of zero, the resulting guideline range was twenty-four to thirty months.
U.S. v. Nash, supra. 
The judge also held a sentencing hearing on
November 7, 2013. Prior to the hearing, the court received and reviewed the Presentence Report, a forensic psychosexual evaluation of Nash, and numerous letters from [his] friends and family. During the hearing, the court heard testimony from Matthew Moe, a long-time friend of Nash; Dr. Frankie Preston, Nash's psychologist; John Nash, Nash's father; and Nash himself.
U.S. v. Nash, supra. 
That might have been the end of things, but this judge explained that she had
serious concerns about the appropriateness of the Guidelines sentence in this case. The court is not alone in this view, as other courts have expressed similar concerns with the Sentencing Guidelines, particularly as they apply to child pornography cases.

For example, Judge Mark Bennett, from the Northern District of Iowa, has expressed concern about the Sentencing Guidelines generally. He noted that after they were implemented, `discretion in sentencing was shifted from judges to prosecutors’ and `prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.’ [Mark Bennett & Mark Osler, The Wrong People Decide Who Goes To Prison, December 3,2013. . . .] According to Judge Bennett, the change `not only resulted in a remarkable surge in incarceration, [but] it does not seem to solve the problem of disparities.’ Id.

Specifically addressing the child pornography guidelines, Judge James L. Graham, from the Southern District of Ohio, recently noted that `[t]here is widespread agreement among judges, lawyers and legal scholars that the guidelines for child pornography offenses are seriously flawed.’ U.S. v. Childs, 2013 WL 5512846, at *1 (U.S. District Court for the S.D.Ohio 2013). Judge Graham points out that the Sentencing Commission itself has `publicly declared that the existing guidelines for child pornography offenses were flawed in need of repair’ and notes that the Department of Justice `expressed its agreement.U.S. v. Childs, supra.
U.S. v. Nash, supra. 
She also noted that in U.S. v. Dorvee, 616 F.3d 174 (U.S. Court of Appeals for the 2d Circuit 2010), the appellate court cautioned that U.S. District Court Judges should take seriously
the broad discretion that they possess in fashioning sentences under § 2G2.2, keeping in mind that they are dealing with an `eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.’ U.S. v. Dorvee, supra.  Such is the case here, where a first-time offender, who possessed four different images sent to him by his girlfriend with whom he had a legal and consensual sexual relationship, faced a guideline sentence that maxed out at the statutory maximum of 120 months before this court refused to apply a higher Guideline provision.
U.S. v. Nash, supra. 
The judge also explained that she was “particularly troubled” by the application of the
Sentencing Guidelines to `sexting’ cases involving a consensual and legal relationship. Sexting is a widespread phenomena among teenagers and young adults. Regardless of the appropriateness of engaging in such virtual conversations, the court doubts that this behavior is the kind that Congress was targeting when it passed child pornography laws.

While Nash's relationship with E.L. may be inappropriate, it was perfectly legal in the state of Alabama where the age of consent is sixteen. See Alabama Code §13A–6–70(c)(1). The difference in age between Nash and E.L. was six years, and the difference in maturity levels was likely less than that. Based on the forensic psychosexual evaluation and Dr. Preston's testimony, Nash was an emotionally immature twenty-two-year-old young man with untreated ADHD who entered into a an ill-advised -- but perfectly legal -- relationship and received four lascivious picture messages from his sixteen-year-old girlfriend.
U.S. v. Nash, supra (emphasis in the original).
The judge therefore found that the “the child pornography Guidelines do not truly reflect the kind of conduct involved in this case” and therefore set about “trying to craft a sentence that is sufficient but not greater than necessary to comply with the statutory purpose of sentencing.”  U.S. v. Nash, supra. She noted, first, that
looking to the nature and circumstances of the offense, the court considers the rampant nature of sexting in today's society, particularly among teenagers and young adults. Numerous individuals and organizations have written articles and conducted studies on the topic of sexting in recent years, both within the legal community and outside of it. In March 2009, National Public Radio highlighted the `Disturbing New Teen Trend,’ noting that states are responding to the problem in `wildly different ways, with everything from felony charges to educational assemblies on the dangers of the Internet.’
U.S. v. Nash, supra.  She also cited and quoted other sources that emphasized the frequency of sexting among American teen-agers and the “`most [do not] realize their actions are illegal and could qualify them for a decades-long sex offender registration requirement.’” U.S. v. Nash, supra (quoting Elizabeth C. Eraker, Stemming Sexting: Sensible Legal Approaches to Teenagers' Exchange of Self–Produced Pornography, 25 Berkely Tech. L.J. 555 (2010)).  She said she also took into account “the proliferation of sexting among young people today and its unintended consequences as a factor in determining Nash's sentence.”  U.S. v. Nash, supra. 
And she took into account the
number and type of images that were on Nash's cell phone. The four pictures . . .were not photographs of a prepubescent minor, were not masochistic, were not torture or bondage, and were not the totally-beyond-human-consideration photographs that are present in so many cases involving child pornography. No evidence exists that Nash shared these images with others. . . . These four images were the only child pornography found on his phone or his computer. The court does not minimize the wrongness of Nash's conduct, but notes that it is not as horrific as the conduct that the court must frequently address in the most common kinds of child pornography cases.
U.S. v. Nash, supra.  She also explained that she had to take into account the 
history and characteristics of Nash. His age plays a significant role in his conduct and his sentence. Studies show that until age 25, the part of the brain that governs judgment, decision-making and impulse control is still in the developmental process. Male brains specifically develop even more slowly than female brains. . . . 

Furthermore, Dr. Preston, who completed the forensic psychosexual evaluation of Nash, testified. . . . After affirming that Nash suffered from untreated ADHD at the time of his relationship with E.L., Preston stated. . . . he thought `it would be more likely than not [Mr. Nash] would be below average on immaturity and the ability to do some of the socialization that most people his age would be able to do,’ and answered affirmatively when asked whether Nash's immaturity could have contributed to the conduct at issue in the hearing. . . . .
U.S. v. Nash, supra. 
The judge therefore took Mash’s immaturity into account in deciding his sentence.  U.S. v. Nash, supra.  She also took into account that “after being arrested in July 2012, Nash voluntarily began intense counseling and treatment.”  U.S. v. Nash, supra.  She also explained that
[t]his extremely immature young man differs from the typical child pornography defendant who generally has a cache of hundreds of images obtained from peer-to-peer exchanges or from his own creation; instead Nash had four separate images sent to him by his girlfriend. Because of his young age and immaturity, the court questions whether the Bureau of Prisons can adequately accommodate and protect Mr. Nash—another reason why incarceration is not appropriate in this case.
U.S. v. Nash, supra (emphasis in the original).
The judge found “no need for incarceration to protect the public from further crimes by” Nash but also noted that she would “impose terms and conditions that include treatment to make sure that Nash continues along the path of recovery that he is now on, and to ensure that deterrence and protection will not be an issue in the future.”  U.S. v. Nash, supra.  She therefore took “the extraordinary but not unprecedented step of placing Nash on probation for a term of sixty months.”  U.S. v. Nash, supra.
She noted, though, that by imposing probation,

the court imposes much more than a slap on Nash's hand. He will forever be a convicted felon and will forever be labeled a `sex offender’ in the state of Alabama. Although Nash's father pleaded with the court not to brand his son as such for the rest of his life, the court has no authority to avoid this overly-harsh, life-long result. Although Nash is a Tier I sex offender under federal law, requiring registration for only 15 years pursuant to 42 U.S.Code § 16915(a)(1), under the Alabama law bringing the state into compliance with the requirements of the Adam Walsh Child Protection and Safety Act, all adult sex offenders must register for life. Alabama Code §15–20A–3(b).

The sex offender label that Nash's father pleaded with the court to avoid is statutorily mandated, and the court has no power to change this unwarranted life sentence unless Congress and/or the Alabama legislature change the law. The court considers the harshness of this `life sentence’ in imposing probation in this case.
U.S. v. Nash, supra (emphasis in the original).
Finally, the judge noted that as part of his conditions of probation, after completing

some treatment, the court requires Nash to participate in five hours of community service under the supervision of the probation officer. The court is convinced Nash has many positive gifts to give back to the community, but first needs to benefit from further treatment. In a few years, when Nash and his probation officer, in consultation with his treatment provider, believe the time is right, the court urges that Nash consider speaking out against sexting and the problems that it has caused. . . . The court does not require this of Nash . . . but desires that [he] consider this request in a few years.

U.S. v. Nash, supra.

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