Legal Commentary

Misdemeanor Plea in Case Involving Making Video of Yourself Supposedly Singing Sexually Themed Songs to Children (Who Actually Weren?t Present During the Singing)

By Eugene Volokh

I blogged last month about the original ? and legally unsupported ? felony charges for manufacturing child sexual abusive material in this case. According to the principal,

[A] recent graduate (who contacted the teacher ahead of time) visited a first grade classroom and informed the teacher that he wanted to video himself singing to the class as a portion of his portfolio to help him gain admission to a Big Ten School of Education. He performed the song ?Lunch Lady Land? under the direct supervision of the teacher.... [A]t no time were inappropriate lyrics, actions or comments made during the presentation.

[Some days later,] this same recent Ravenna graduate ... [displayed a version of the video on YouTube]. [I]n this version, which was electronically altered and enhanced, the students are shown reacting to an extremely derogatory, and sexually explicit song that was not performed in front of our students or the teacher. Through technology and a great deal of editing, the perverted and extremely inappropriate presentation appears to be genuine and performed in front of the class.

Now, the graduate ? Evan Emory ? will likely end up with a misdemeanor conviction, under a plea bargain:

Emory pleaded no contest Monday to a reduced felony count.

Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.

If Emory successfully completes probation, he will be allowed to withdraw his plea to the felony and plead to a misdemeanor[,] ... unlawful posting of an Internet message with aggravating circumstances. That?s a potential five-year felony, but state sentencing guidelines would not lead to a sentence that strict in the case of Emory, who has no prior criminal record....

The charge to which Emory pleaded is usually applied to cases of intentional harassment over the Internet. But Emory?s lawyer, Terry J. Nolan, said Emory did not agree that he intended to harass anyone ? only that harassment was the consequence of his actions.

At least one parent of a child in the video said his daughter had been teased at school over being seen in the video and had suffered emotional trauma as a result....

The statute is apparently Mich. Penal Code § 750.411s:

(1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim?s consent, if all of the following apply:

(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.

(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

It?s not clear to me that the statute is generally constitutional, and it?s also not clear to me exactly what it means. I?m not sure exactly what the statute means, especially as to ?acts of unconsented contact.? Does such an ?act? include the victim simply seeing the message? Or does it require that someone (likely a third party) physical contact the victim, or perhaps communicate with the victim? Likewise, what exactly does ?harassed? or ?molested? mean? If I post a message condemning a local official or businessperson or what have you, because I want the person to get complaints from the public, does qualify? Likewise, is it a crime for a girl who catches her boyfriend cheating on her to post a Facebook item exposing him, if part of her purpose is to get their friends to remonstrate with the boyfriend and make him ?feel? ?harassed?? But in any event, none of this will be tested in this particular case, because of the plea.

Full post as published by The Volokh Conspiracy on March 18, 2011 (boomark / email).