Lawyer: Child porn, consent laws conflict
What Todd Senters did was legal. Videotaping it was not.
Senters, a former Omaha Northwest High School teacher, was convicted last year for manufacturing child pornography after videotaping himself having consensual sex with his 17-year-old girlfriend and former student.
That, argues his lawyer to the Nebraska Supreme Court, highlights a conflict between two state laws — one making such sex legal, the other criminalizing the taping of the act because it involved a minor under the age of 18.
Senters, 31, was prosecuted after his roommate found the tape in their apartment and turned it in to authorities.
Senters, who taught at Northwest for five years, was put on probation and required to register as a sex offender. He now lives out of state.
His lawyer, James Martin Davis, said state law allowed people age 16 or older to have consensual sex.
And, he said, the Legislature did not intend the child-pornography law to be used in such cases.
"This law is intended to protect those children who were not yet old enough to form a rational basis for consensual sex, and to protect the public at large from the distribution of such material," Davis said in briefs filed with the Nebraska Supreme Court.
"It was never designed to provide a basis for invading the privacy of the bedroom in order to effectuate the prosecution of two legally consenting young people who decide to photograph their encounter for purely private purposes," Davis said. "So while the state permits the underlying sexual act in this case, it criminalizes certain aspects of that sexual experience."
Nebraska Solicitor General J. Kirk Brown said that in passing the child-pornography law, "the Legislature … clearly has not condoned the possession of videotapes of such activity.
"Senters attempts to confuse his act of copulation with his 17-year-old partner with videotaping that same behavior," Brown said. "Those two acts are legally distinct.
"Had Senters elected not to have preserved on videotape his copulations with this 17-year-old, criminally sanctionable child pornography would not have been created," Brown said.
Davis said having both laws on the books "leads to unfair, unjust and bizarre results."
The high court is to hear oral arguments in the case Tuesday.
Senters, a former Omaha Northwest High School teacher, was convicted last year for manufacturing child pornography after videotaping himself having consensual sex with his 17-year-old girlfriend and former student.
That, argues his lawyer to the Nebraska Supreme Court, highlights a conflict between two state laws — one making such sex legal, the other criminalizing the taping of the act because it involved a minor under the age of 18.
Senters, 31, was prosecuted after his roommate found the tape in their apartment and turned it in to authorities.
Senters, who taught at Northwest for five years, was put on probation and required to register as a sex offender. He now lives out of state.
His lawyer, James Martin Davis, said state law allowed people age 16 or older to have consensual sex.
And, he said, the Legislature did not intend the child-pornography law to be used in such cases.
"This law is intended to protect those children who were not yet old enough to form a rational basis for consensual sex, and to protect the public at large from the distribution of such material," Davis said in briefs filed with the Nebraska Supreme Court.
"It was never designed to provide a basis for invading the privacy of the bedroom in order to effectuate the prosecution of two legally consenting young people who decide to photograph their encounter for purely private purposes," Davis said. "So while the state permits the underlying sexual act in this case, it criminalizes certain aspects of that sexual experience."
Nebraska Solicitor General J. Kirk Brown said that in passing the child-pornography law, "the Legislature … clearly has not condoned the possession of videotapes of such activity.
"Senters attempts to confuse his act of copulation with his 17-year-old partner with videotaping that same behavior," Brown said. "Those two acts are legally distinct.
"Had Senters elected not to have preserved on videotape his copulations with this 17-year-old, criminally sanctionable child pornography would not have been created," Brown said.
Davis said having both laws on the books "leads to unfair, unjust and bizarre results."
The high court is to hear oral arguments in the case Tuesday.
Copyright © 2002-2008 Lincoln Journal Star. All rights reserved.