Legal Challenges

“Child Porn” Challenge

Premise: “Child pornography” charges are unconstitutional, as applied, when the prosecution fails to identify, locate, question, and produce for testimony the alleged minor victim(s) depicted in the images.

Legal basis: The Sixth Amendment to the U. S. Constitution enunciates the absolute right of a criminal defendant to be “confronted with the witnesses against him.” These “witnesses” include the alleged victim(s) of the crimes the defendant is accused of. In cases involving the sale, possession, distribution or production of “child pornography,” the confrontation clause requires that the person(s) depicted in the photographic images be identified, located, questioned, brought forward to testify before a grand jury, and made available for cross-examination by the defense. Failure to do so is unconstitutional.

In the U.S. Supreme Court’s 2004 decision in “Crawford v. Washington”, this right was strongly reinforced, and should be used as a precedent.

(Not only must the person(s) depicted in the alleged “child porn” be identified and brought forward to participate in the legal process, it must also be determined that the images are of actual minors. In instances where the person(s) depicted appear to be teenagers, this should be deemed essential. See: “Minors U.S. v. Lamb”, NY 1996.)

Age of Consent Challenge

Premise: Any age of consent over 16 is unconstitutional.

Legal basis: Using proportionality analysis, ages of sexual consent over 16 can be deemed unconstitutional, as the vast majority of states have 16 as the age of consent. (Proportionality analysis is the process of comparing state laws to determine national consensus on laws that may violate the 8th Amendment’s proscription against cruel and unusual punishment, so that when a clear majority of states are in line courts can strike down non-conforming laws. This is used to protect fundamental rights: here, that of privacy, which encompasses issues of sexuality.) The Supreme Court used this process in two recent landmark cases, one invalidating adult sodomy laws (Lawrence v. Texas), and one eliminating the juvenile death penalty (Roper v. Simmons). A similar application of proportionality analysis could succeed in invalidating state ages of consent of 17 or 18.

(Comparisons can also be drawn with the ages of consent of other western democratic nations.)

The Female Breast and Equal Protection Challenge

This is a demurrer/appeal/post-conviction/habeas corpus claim to challenge the constitutionality of the inclusion of the female chest (pre- and post-pubertal) in the definitions of “sexual or other intimate parts” (Oregon Revised Statutes 163.305 (6); 163.665 (f); 167.017 (5)), “sexual conduct” (ORS 163.665 (3); 167.060 (10); 167.002 (4)), “sexual contact” (ORS 163.305 (6)); 167.002 (5)), and “nudity” (ORS 163.700 (2) (b); 167.060 (5)) as used in sexual abuse (ORS 163.415; 163.427), endangering the welfare of a minor (ORS 163.575 (a)), visual recording of sexual conduct by children (ORS 163.665 through 163.696), prostitution (ORS 167.002 through 167.027), obscenity (ORS 167.060 through 167.100), and possession of sexually explicit material re child (Ch 719 (3) and (4)) statutes in Oregon.

Claim: The inclusion of the female chest in the categories/definitions of “sexual or other intimate parts,” “sexual conduct,” “sexual contact,” and “nudity” in Oregon’s criminal code is a violation of the equal protection provisions of both the Oregon Constitution (Article 1, section 20) and the U. S. constitution (14th Amendment). The female chest cannot in any way be treated as legally different from the male chest; because the male chest is not considered a “sexual or other intimate part,” the female chest cannot constitutionally be classified or construed as such, either. It is discriminatory.

This argument can be tailored to any individual state prosecution where the charges include allegations involving the female chest in any of the above listed statutory categories. The claim may be used as a demurrer – a pre-trial challenge to the indictment (ORS 135.610 et seq.); as an issue on direct appeal; as a post-conviction relief claim (ORS 138.530 (d)); and/or as an issue in a habeas corpus filing. It can also be re-written to challenge such laws in other states and similar federal laws.

This is a somewhat novel challenge, not yet ruled upon by the Oregon Court of Appeals or the Oregon Supreme Court. However, it is not unprecedented. In some states, equal protection challenges have successfully been used to invalidate provisions of public indecency statutes criminalizing public exposure of female breasts. Tellingly, such exposure is not prohibited under Oregon’s public indecency statute (ORS 163.465); it simply isn’t against the law in this state.

• The Oregon Revised Statutes:

Copyright 2004 by the author
— Composed by David G. Chandler, The National Association for the Reform of Sex Laws  March, 2004
the Reform of Sex Laws: March, 2004

Uncorroborated Testimony Insufficient for Criminal Conviction

Premise: A criminal conviction based solely upon the uncorroborated testimony of an alleged victim is an unconstitutional violation of due process, as such a low quantum of evidence is insufficient to sustain a conviction under the reasonable-doubt standard for burden of proof in criminal prosecutions.

• U.S. Constitutional Amendments 5 and 14

Precedents: In re Winship, 90 S.Ct. 1068 (1970) held that the reasonable-doubt standard of criminal law has constitutional stature. Jackson v. Virginia, 99 S.Ct. 2781 (1979) enunciated standard governing review of insufficient evidence claims. Carmell v. Texas, 120 S.Ct. 1620 (2000) held that a change in evidentiary requirements permitting uncorroborated testimony in criminal trials is a “sufficiency of the evidence” rule. State v. Simons, 167 P.3d 476 (2007) held that the unsubstantiated confession of the accused is insufficient proof of corpus delicti to convict.

“Corpus delicti rule”: the body of the crime must be established by the prosecution with corroborating evidence. (Black’s Law Dictionary)