Mimesis Law
28 May 2017

Is There Qualified Immunity For Child Molesters?

May 27, 2016 (Mimesis Law) — Let’s not bury the lede. Trey Sims is suing Prince William County for its attempt to use a search warrant to allow a child molester to film him while he fondled his genitals.

In many places, it is a crime for teenagers to send each other naked pictures of themselves. Not because it hurts anyone. Not because children benefit more from being placed in a youth detention facility (where the odds are good they will be molested by staff) than they would from learning why it’s a bad idea to make their nudity public. No, we make such sexting a crime because distinguishing between child pornography and willful sexual activity by teenagers requires too damn much thought.

At seventeen, Trey Sims became a victim of these laws. His fifteen-year-old girlfriend sent him a naked photo. He sent her an explicit video of himself in exchange. In a country where hysterical overreaction in the face of normal teenage sexuality is no vice, the outcome was obvious. To prevent teenagers from manufacturing child pornography, the authorities arrested Sims and took pictures of his genitalia.

He spent much of the next year under house arrest, unable to access a cell phone and under curfew—basically cut off from a social life with his peers. Quietly, he awaited trial.

But, of course, the question arose: “Have we taken enough pictures of this boy’s genitals?” The answer was no. A magistrate willingly provided a search warrant for someone to inspect Sims’ erect penis—made erect either by manual stimulation or by an injection at a hospital.

At that point, Detective Abbott, a youth soccer coach who lived with his mother, would compare pictures of the boy’s penis with the explicit video using “special software,” Wait. Is there such a thing as special penis identifying software? Probably not.

Still, it took wide-spread public outcry to deter the intrepid detective from his comparison shopping. Abbott, overcome with butthurt, sued Sims’ lawyer for saying his request was crazy. Sims ended up on probation for a year, with his charges dismissed at the end. Not quite an acquittal, but a damn sight better than being on the sex offender registry for life.

In the meantime, it came to light that Detective Abbott was a child molester. He had chosen the one career where viewing child pornography was a sign of job commitment, not pedophilia. As authorities closed in to arrest him, he shot himself and died.

So now, Sims is hoping for some small measure of relief. He would like to hold the prosecutor’s office and police department accountable. And it is possible that he will lose. Not because what the prosecutor or the police department did was right, mind you. But because they could not have reasonably known that it was unconstitutional.

Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”

Punishing teenagers for their consensual sexual conduct with one another is wrong. It is stupid. It is definitely harmful. But still, under the law as it existed, Sims’ conduct was a crime. And when you suspect someone of a crime, it is lawful to lock them in a room until they crap out contraband. As soon as someone enters jail, even for a minor traffic offense, he may be strip searched.

And there does not appear to be any clear legal right not to be photographed by police, even nude, assuming that they have a search warrant. In the only case easily found on the issue, the Illinois Court of Appeals did not seem to see a 4th Amendment problem with photographing a suspect’s genitalia, although it did suppress the evidence because defense counsel was not notified that the search would occur.

Now maybe Sims will clamber past all these hurtles based on evidence that Abbott wasn’t taking these photos to help crack the case. He was doing it for his own sexual gratification. Hopefully, there is a clear 4th Amendment right not to be searched because a police officer finds you attractive.

Then again, we submit to this sort of thing all the time. Think of all the stories of attractive women singled out in line at the TSA for additional patdowns. It doesn’t seem as though routine searches become impermissible just because of a government official’s subjective motivations.

If Sims’ case turns out as I suspect it will, it will confirm many criminal defense attorneys’ dawning suspicion that our right to privacy against the government is dwindling. How can a country with a raging debate about “revenge porn” live with the idea that nude images of children might be seizable with little more than a rubber stamp from the local magistrate?

Meanwhile, if we want to get the government out of the business of making child pornography, we are going to have to start passing more realistic protections against prosecuting teenagers for sexting. Otherwise, the government’s crusade will seem to be less about stopping the production of sexts than about making sure that they get to keep a few copies.

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