Is cheerleading pornographic?

One of the worst trends in the United States the way that prosecutors in the United States continue to push the envelope in how laws are interpreted. This is especially true in the realm of sexual offenses. The new Puritanism, inspired by Theopublican dogma and feminist-inspired hatred of sexuality, is constantly looking for new interpretations to make more things illegal.

Here is a clear example. Mr. Gilbert Chan, 52, is a business reporter in Sacramento. And he was arrested for a “single felony count of possessing obscene matter depicting sexual conduct of a person under 18.” Sounds ominous doesn’t it? His own newspaper reports it as “possession of child pornography.”

There is no child pornography involved -- none. The film does not contain pornography of any kind except in the minds of the district attorneys office.

There was a video tape, but there was no nudity and no sexual activity on the tape.

Chan was at a “cheerleading competition at the UC Davis Activities and Recreation Center and he videotaped girls in their cheerleading outfits. They were doing cheers not cunnilingus.

For this Mr. Chan faced imprisonment and lifelong harassment as a registered sex offender. He had charges filed against him well in excess of anything that the law allows.

The evidence is that Chan’s video tape took particular interest in the buttocks of the girls and other “body parts”. I assume they means breasts. Remember everyone of the “victims” was clothed were performing cheers in a public place.

Worse yet Chan stupidly pleaded “no contest” to the charges. I suspect the reasoning was simple. The prosecutor used his ability to overcharge individuals to threaten Chan. They will prosecute the man as a child pornographer and work to get him the maximum penalty under the law. That includes the Scarlet Letters of the New Puritanism -- RSO, registered sex offender.

However, if Chan accepts the charges against him, through the “no contest” plea then the prosecutor won’t force him to register as a sex offender.

I have blogged about how prosecutors have used the death penalty in Texas to force innocent people to pleading guilty for murders they did not commit. The prosecutor informs the “suspect” that they will be executed. He waves about the tendency of the good Christian folk in Texas to demand that the state go into the murder business. Nothing gets the god-botherers more satisfied than a few killings.

The suspect then is informed that the only way he can avoid being murdered by the government is to plead guilty to the offense. In other words the suspect is offered the choice of dying or life in prison. And many prefer life. The prosecutor is happy and his “conviction rate” goes up -- that helps his career and is popular with the voters as well. The prison industry is happy, each new prisoner means more redistribution of wealth to wardens, prison guards and the like. Even the family of the victim is happy since they have been false lead to believe that a guilty person was caught and imprisoned.

Of course the satisfaction is all fake. The man may not be guilty at all. The real killer is likely free and unpunished. But nobody seems to care.

So it is with sex offenses. The prosecutor comes in with horrendous charges, he over charges intentionally in order to force the “suspect” into pleading guilty. In return for the suspect’s plea the prosecutor then reduces the charges.

Remember the case of Matt Bandy and the disgusting antics of the Maricopa County (AZ) prosecutors office. In that case District Attorney Thomas Andrew is a loony, rabid fundamentalist type. His office arrested a teenage boy and filed charges against him that would result in a sentence of life in prison. The charge was alleged child pornography -- I say alleged since the photos were never seen by a jury.

Bandy’s parents spent a massive sum of money --- enough to buy several houses, defending their son. They finally forced the reluctant prosecutors to release the computer, where the porn was allegedly stored, for forensic inspection. The result was proof that a handful of photos were being stored on the computer by someone from a remote location. Using virus they hacked the computer and could use its internet connection to store anything they wanted without the family’s knowledge.

Once it was confirmed that the prosecutor had an extremely weak case he went to the boy and offered him a plea bargain. If he admitted guilt to a lesser charge the main charges would be dropped. The lesser charge was that Bandy had showed a copy of Playboy to some of his school mates.

The boy would be spared prison for this new heinous offense -- heinous in the minds of the Christian Jihadists in the Republican Party. But Thomas still wanted the boy to be forced to register as a sex offender. Only the actions of the judge in the case prevented the sex offender status from taking effect. But Bandy was found guilty for showing the Playboy -- an offense which I fear would result in the arrest of about the entire teenaged male population of the country. And those not arrested for looking at Playboy would most likely be guilty of looking at Playgirl.

Bandy’s choice was life in prison or registering as a sex offender for having Playboy. Of course he choose the later. Thomas could brag about his conviction rate and the fundamentalist law and order mobs would be happy that Satanic porn lead to the punishment of a young student. It might not be burning at the stake but it sure made them feel good anyway. Things only worked out for Bandy because of the obscene amounts his family had to spend to defend him. The typical teen, caught in this sex hysteria lynching, would be convicted and jailed and become an RSO because of simple economics. His family can’t afford the defense he needs and the prosecutor doesn’t give a damn about how much tax money he spends. In fact, the more he spends on “crime” this year, the more he gets budgeted next year.

In Chan’s case the prosecutor was able to force a “no contest” plea, which is basically the same a guilty plea but without saying one is guilty. He was able to force it by promising Chan that if he did this he would be prosecuted for a misdemeanor, probably avoid prison time --- the new jail time was a possible three months versus three years --- and he wouldn’t have to register as a sex offender.

It is doubtful that Chan could afford a trial. Very few victims of prosecutorial zeal can match the spending habits of the prosecution. After all the “suspects” are usually spending their own money and the prosecutors are spending your money. And when the suspects get a public defender they rarely get quality help and almost no budget for their own defense. The system is rigged to encourage the lynch mob mentality of prosecutors.

Worse yet, Chan’s plea encourages more prosecutions for “child pornography” where there is neither nudity nor sexual activity. A cheerleading contest is hardly an orgy. Chan may have filmed the clothed buttocks of some cheerleaders, and some of those cheerleaders were under 18. But a clothed butt is not pornography. Chan was also convicted to plead “no contest” to violating the privacy of the cheerleaders, this in spite of the performance taking place in a public venue.

The prosecutor knows he can get away with stretching definitions beyond all reason. As long as he shouts “child pornography” the public looses any sensibility. With his powers to destroy lives by forcing a RSO status on people he has the ability to plea bargain individuals into guilty pleas, or their equivalent, even where no charges are warranted.

It may be that Mr. Chan enjoyed teenage buttocks. In fact it is likely. Most adults, male and female, find at least some pubescent individuals sexually attractive, even if they are below the local age of consent. Contrary to the fevered claims of the Religious Right that is entirely normal. But just because Chan enjoyed the video doesn’t make it pornographic.

However, the courts have long given leeway to prosecutors to prosecute people for pornography even when no nudity or sexual activity is present. Individuals have been imprisoned for material that could be shown on television -- some for material that even Christian television could show. One case I read about concerned a man who had photos of teenaged boys without their shirts on. They were otherwise dressed and nothing sexual was implied. The judge reasoned that if the man found it exciting that made it porn.

With that sort of reasoning a shoe catalogue could get some people arrested as purveyors of obscenity.

This is just another example of how the perverse incentives of government corrupt the legal system. One might argue that Chan was a bit creepy but he wasn’t a pornographer. His video might be bad taste but it wasn’t sexual. He shouldn’t have been prosecuted. Also note that the video in question was the only offense for which he was charged. I can assure you that the police confiscate his home computers, video tapes, etc., in order to find real child porn. That no other charges were brought against him indicates that no child porn existed in his possession. If he had it they would have filed more charges. This one charge indicates that Chan did not actually have any child porn at all. The prosecution was bogus.

Yes, sexual attacks on children are horrible things. It is that horror which helps prosecutors get away with horrible things themselves. As long as people become hysterical and irrational over sexual matters, something the Religious Right encourages, this sort of prosecutorial misconduct will continue.