Moral panic makes bad law

The trial of the second boy charged in connection with the #YouKnowHerName case got underway in Halifax this morning. In the Halifax Examiner, Tim Bousquet correctly predicted the defendant would plead guilty, before adding:

The first man tried in the case pleaded guilty and was given a light sentence that included no jail time.

Since the media long ago convicted both youngsters of rape without benefit of trial, Bousquet and his fellow journocutors would likely consider anything short of a long prison term to be “light.”

But the boys—they were legally boys at the time of the now infamous incident— haven’t been charged with rape. One was charged with making child pornography, the other with distributing it. The open secret is that everyone—media, police, prosecutors, public—knows that’s not really what they did.

What they did, as minors, was to take, and text to others, a sexually explicit photo of another minor without her consent.

Up to the “without her consent” part, this is something thousands of Canadians—young and old—do every day. Doing it without the girl’s consent was nasty, cruel, and certainly worthy of being a crime. I would support a law that made it a crime. Unfortunately, we don’t have such a law, so we shoe-horn the offence into a bogus child pornography charge.

Ugly as it was, this was not a case of child pornography. Society created child pornography laws to protect children and punish adult pedophiles, not to punish sexual activity and imagery among teenagers, even those deemed too drunk to give their consent.

One result is a flurry of child pornography charges against youngsters guilty only of entirely consensual sexting.

In the #YouKnowHerName case, the media and much of the public want to see the boys punished for what many fervently believe, based on hearsay accounts by individuals with a deep personal stake in the case, to have been rape, a crime that too often goes unpunished. It’s clear the available evidence does not support such a charge. So any charge will do.

That’s no way to run a criminal justice system.

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