Episode 19: Revenge of the Porn, Part 2: Porn in Paradise
Jessa: Hey guys. This is Jessa Nicholson Goetz.
Nick: This is Nick Gansner.
Jessa: And this is Getting Off. This is part two of our “all things sex crimes and porn” episodes on policy. And we want to talk about revenge porn right now, is what we want to talk about. So basically, here is a thing that happened all over. People would make sexy videos or sexy photos of themselves and give them to a trusted, intimate partner. And then that relationship would perhaps deteriorate. And the trust partner would get bitter and post.
Nick: Become an untrusted partner. An untrustworthy partner.
Jessa: Irresponsible photography possession.
Nick: Big time.
Jessa: And would post such things onto public forums without the naked person’s permission. So there’s been a recent reform in law to make that the revenge porn law or to make revenge porn illegal. So you can no longer send or redistribute or copy or make fliers of or anything naked pictures somebody gives you with the idea that those are just for you.
Nick: Yeah. You can’t go out and be, like, alright. This asshole dumped me. Watch this.
Jessa: Look at this. Here it is. So that’s a new sort of set of laws in the age of digital reproduction and creation that has gotten a lot of attention recently because it keeps happening, which. You know. You’re a special kind of asshole.
Nick: You are. Not okay. I mean, just, no one thinks that’s okay. You can’t, you don’t need a law to tell you that’s wrong. You know that’s wrong. That’s why you did it.
Nick: It’s intentionally cruel. It is vengeful.
Jessa: Right. Hence, revenge porn.
Nick: There it is.
Jessa: And it’s not actually illegal in all 50 states yet. There’s, the law is still catching up to the times there.
Nick: So Wisconsin passed such a law in 2014, I think. And I think, at the time, was maybe the third state in the country that passed a law specifically aimed at that behavior.
Jessa: And I absolutely remember talking to a client before Wisconsin passed that, who was, like, “I think I’m gonna toss these pictures on the internet”, and I was, like, “I would really just advise you not to do that. Just don’t do that.” And you know. He asked, like, “Oh. Is there a law against it?” I went down that deep dive and I’m like “Well, as it turns out, there’s not, but there’s just like a Don’t Be A Dick law against it”, which really is my basic foundation. The law of Don’t Be A Dick. And if you’re sending pictures that somebody gave you in confidence to other people or posting them on the internet, that’s a dick thing to do, and we advise against that. Both as lawyers and as human beings.
Nick: Indeed. Both.
Jessa: That’s another area, a weird, like.. the ways that sex pops up in our laws are fascinating. And then there are all of these caveats to some of the crimes that we talked about in our first episode, which is, there are things called Romeo & Juliet laws. So if there are two people who are within a certain age bracket of each other, and one of them is underage and the other is maybe 18 or 19, then sometimes they won’t be prosecuted or they can’t be prosecuted, depending on the state that we’re talking about.
Nick: If they have these Romeo & Juliet laws.
Jessa: But a lot of that actually lands on the shoulders of the prosecutor who’s making the charging decision. And prosecutors wield a lot of power in this area because of the collateral consequences of sex convictions. Because being a sex offender means so much to the world, writ large, that when you have a prosecutor who chooses to charge two 15-year olds who agreed to have sex with one another, and on of them is charged and is turned into a perpetrator and a sex offender, and the other is turned into a victim of sexual assault, even though they were two assenting children. That becomes a problem, too.
Nick: And this is a theme, I feel like we’re returning to time and time again.
Jessa: Prosecutorial discretion? Yeah. That’s a big theme.
Nick: Yeah. It’s that when you create these laws that give whoever, whatever human being is acting in the role of prosecutor, enormous amount of discretion, I think you’re creating a circumstance where you’re gonna have wide variance in how laws are actually applied. And that creates arbitrariness, which the law isn’t supposed to do. So that’s okay when you are dealing with a sound, rational, ethical, good prosecutor. But you have some prosecutors who don’t wield their power and their authority in that manner. And that creates serious problems.
Jessa: Right. There was a case here a few years ago where there was a 10 year old and a 6 year old that were playing doctor. And the prosecutor made an effort to charge the 10 year old in juvenile court for some type of sex crime. And that case was ultimately dismissed, but that’s a thing that happened. And I think it’s important that we, as a society, push the pause button to ask, is playing a doctor what we want to criminalize? Is children’s exploring their body parts and their sexuality something that we really want to criminalize at the same level when a 45 year old man has sex with a 12 year old?
Jessa: The problem with a lot of these laws is they really don’t make much of a distinction, if any.
Nick: They can be applied in a way that doesn’t draw a distinction. They can be applied in a way that does draw a distinction, but again, this is where this notion of discretion comes in. And so you can get wildly divergent outcomes where one prosecutorial office may have a policy of doing it a certain way, and another office may have a policy of doing it a different way. Or there may be no policy, and different prosecutors within the office may charge it differently, and so, you may have a lack of consistency within a prosecutorial agency. And all this, all these possibilities come into existence, the possibilities, when you have laws that allow for a wide variation in the exercise of discretion.
Jessa: And there’s a political problem to fixing that. And that is, nobody really wants to be on Team Child Molester.
Nick: Of course not.
Jessa: So no politician is going to come forward. Somebody who is responsible to the electorate is going to come forward and say “Hey. Sex offenders. They’re getting a bad rap. We really would like to do more to help the sex offenders”.
Nick: Says no politician ever.
Jessa: No politician ever would say these things, which is why it’s almost always a popular battle cry to be tough on crime and to be tough on this particular type of crime because no one wants to be seen as being pro-child molester or pro-rapist or pro-pornography peddler.
Nick: Pro-any sex offender.
Jessa: No one wants that. And so what happens is these laws are overwhelmingly popular because when they’re described, they’re always described as the man lurking in the bushes who’s going to steal your child and sell them in some sort of child trafficking sex ring. And that’s scary as it should be. And it’s rare, which is very often not discussed, how rare that..
Nick: Well, that’s never a part of this conversation.
Jessa: No. That sort of stranger abduction of a child is. Far and away, the most common type of child sexual assault is incest. Most offenders, most sex offenders are opportunistic offenders, meaning that they grab whatever is closest to them. And that’s oftentimes family members or friends of the family or people that they know.
Nick: Vulnerable people.
Jessa: Right. There is also, sort of, this umbrella of grooming behaviour and we’re skipping around a lot but this is all of the stuff that we talk about all the time at the office. And because we’re going to cover a lot of sexually motivated cases, we think that it’s a useful tool to talk about some of the different ways that this works its way into the law. So one thing that we see a lot of is a discussion of grooming behavior where an adult or somebody in power will do things to gain a child’s or a teenager’s trust in order to eventually extort sexual favors from them. With teenagers, it’s really common that adults will buy them alcohol or perhaps provide marijuana or some other drug. It makes the teenager think “Hey. This guy is cool. I can trust him. He’s my buddy.” when really, the plan is to groom them into acquiescing to whatever bad creepy plan is coming forward.
Nick: I feel like this notion of grooming really took off or really took root in the public consciousness with the Jerry Sandusky case. Right? We heard a ton about it in that case. About how Jerry Sandusky would use this charity that he had developed to get access to kids who he would then groom by giving them cool access to the Penn State football program. And I do feel like, for a period of time, I feel like it’s settled down a little bit. But I feel like after or around the time of the Jerry Sandusky case, you started hearing the word ‘grooming’ in, like, every case. And it was, like, hold up. This is clearly a phrase that has meaning. This type of conduct does happen. But every single thing in every sex crime case is not grooming.
Jessa: And people can also just volunteer their time to spend with children and teenagers without it being grooming behavior. For years, I coached high school mock trials. That wasn’t because I was trying to get an in with the sophomore class. It was because I think it’s great to teach young people to speak in public and to debate and to think about things like the law which, obviously, I’m passionate about. But all of a sudden, if I were accused even of a sex crime, and the accusation is often a bell that can never be unrung, even if someone is acquitted. But if I were accused of a sex crime, suddenly, my history of donating my time and energy to high school mock trial students would become a negative or a black mark on my propensity or lack thereof to be attracted to children. And so we can really, there’s a lot of room for this to be skewed.
Nick: Big time.
Jessa: And in ways that are often unfair and rooted in that dark world idea that we’ve talked about in the past, that we take behaviors that are seemingly benign like tickling a child and turn them into something that’s sexualized.
Nick: this comes back to the notion of other acts, referred to in many previous episodes. All of a sudden things that can be thought of as innocuous or even admirable, for example, donating your time to work with kids, can be depicted in a very negative light. Suddenly, in the context of some kind of accusation of sexual impropriety involving children.
Jessa: Right. I right’ed again. We’re working on it. We’re working on the verbal tics.
Nick: We’re trying hard.
Jessa: We’re trying so hard. And you guys have been so great about it. Like, this is all in our heads, but so many things that happen are in my head. So. You know. What’s new there, really? But there are in, I think, both of our views, a lot of really serious problems with the way that we handle sex, legally. And it’s, there are all of these things, particularly right now when we’re having this national conversation about sexual harassment and sexual assault. There are all of these competing interests that have pulls towards them. You know, this “Believe The Women” thing is the Me, Too, movement. It’s a pull and it’s an attractive pull because for so long, women haven’t been believed. And they’ve been accused of being deceptive or being harlots or seductresses or succubi, that are attempting to lure men away from their wives or into these sexually compromising positions. And they aren’t believed. And that’s a problem. But then the flip side is, of course, the very real flip side is that when we start with the presumption of credibility and believability for any person, we’re arroding the presumption of innocence. And it’s a very difficult balance to strike to be empathetic and sympathetic and hear and accept and validate claims of sexual misconduct while, at the same time, applying the appropriate burden of proof once we get that case into a court of law.
Nick: Yeah. And an on-going, I mean, we’ve discussed this in a previous episode. Right at the beginning of the podcast, but one aspect of this that I’m still trying to figure out in my own mind, but that I think is important and totally relevant here is, do we adjust the level of either acceptance or scrutiny that we apply? Do we adjust our notions of what role due process should play? Based on the context that we’re evaluating the allegations in. What I mean by that is, we all know that the highest level of scrutiny and the highest burden of proof in the application of due process comes in a criminal courtroom in a criminal prosecution, at a trial in front of a jury. Beyond a reasonable doubt. It’s clearly true that different standards are applied in our day to day life. If you, now I’m moving all the way to the other end of the spectrum. If you are just told in your own circle, in your own life, not some celebrity, but some person that you are acquainted with, you are told that there’s an allegation that this person did such and such to so and so. Well, you might choose, in your own life, to not ever talk to that person again. You might not go places that they go. If you see them at a cocktail party, you might walk out. You might just choose to have nothing further to do with them. And that’s up to each individual person. Somewhere in the middle is, is it appropriate to lose their jobs at the allegation stage?
Jessa: Is it appropriate for people to have to resign from office, at the allegation stage? Is it appropriate to have people lose their jobs at a conviction stage? And should that be a per se rule? Like, if you are convicted of a crime of a sexual nature, does that mean that you should just be fired? And why are you carving out that special exception for sex offenders as we talked about last time, when there are a number of other criminal behaviors that people don’t find themselves as stigmatized for having been convicted of committing?
Nick: Right. If you’re, well. I think part of that, especially the stuff that’s been in the media recently, it’s coming up because so much of it is workplace based accusations. Like, you are doing this to people in a professional setting. And so, I think there is some appeal to the notion that if you are doing this to people that you’re around everyday because you all work together, perhaps it is extremely appropriate for you to not be allowed to go to work anymore or lose your job because the people that are just there to do their jobs shouldn’t be subjected to you behaviour anymore.
Jessa: Unless you work at Nicholson, Gansner & Otis, in which case, everything here is a walking sexual harassment lawsuit because all we do all day is talk about, like, do you think it’s possible to do a reach around to do this? Or does this seem feasible that someone got Eiffel Tower’ed in a church parking lot? We talk about all sorts of weird shit here.
Nick: But that all comes from, like, we get some new case or we get some new police report or what have you, and we start taking it apart. We kick it around the office. But we talk about some unusual stuff.
Jessa: Lots of unusual stuff. And one such unusual sexual behaviour to start our way into our big reveal of our deep dive case would be urination or defecation on another person. Possibly unconsenting person. Nick and I, when we talk about things of this nature, struggle. And that’s because you and I both do not like bathroom humor. We don’t like talking about anything relating to that. And in fact, we have a phrase that we often repeat which is “That’s private”. However, it’s not private for everyone.
Nick: It sure isn’t.
Jessa: Boy howdy. Shit howdy, is it not private from everybody.
Nick: It’s really not private for everybody.
Jessa: And you know, a correlated question, too, is it okay for consenting to do stuff that maybe we’re uncomfortable with or don’t want to talk about? What happens if there are teenagers who are assenting and agreeable to having the sexual activity that they are having, but their age prohibits from legal consenting?
Nick: We should talk about that. You have used the phrase that we use, at least internally in our office, to draw a distinction. There’s one thing to talk about. Two people consenting to sexual activity with each other. But as a legal matter, minors can’t consent to sexual activity. So that’s what you’re talking about before. The age of consent. In Wisconsin, it is illegal to have sex with someone under the age of 18. It’s super illegal to have sex with someone under the age of 16. But there are instances, maybe in Romeo & Juliet contexts for example, where a, Jessa’s been using the word “assenting”, differentiated from “consenting”, to indicate a person who cannot legally consent, but may have assented to whatever form of sexual contact.
Jessa: Who is a willing participant in the activity. And often, and I’ve certainly had cases like this. I’m sure you have as well. Often, you’ll find that an assenting teenager is an uncooperative witness because they chose to have sex with this person.
Nick: Their boyfriend who was older or whatever.
Jessa: Right. I’ve been a teenage girl. When I was 16, you couldn’t tell me anything. I knew all of it. I knew the whole world. I had everything figured out and the 21 year old guy that I met at a gas station on the fourth of July that I followed to a lake party and drank.
Nick: What could go wrong?
Jessa: Drink Jim Beam in the back of his Crown Vic? That guy, I thought was cool. He had a ponytail. That should’ve been tip one. Cause this was before the age of man buns.
Nick: That was well before man buns.
Jessa: This was in the 90s.
Nick: Today, different story.
Jessa: But he had a 90s, school social worker ponytail.
Nick: Like, sensitive 90s man ponytail.
Jessa: It wasn’t good. But when I was 16, I was, like, that’s totally awesome that this guy’s gonna buy me beer and have sex with me. How cool is that? It’s not cool. It’s fucking creepy. But I didn’t know that. So at what point should society step in and say, “Look. This idiot right here. Jessa. She thinks that it’s okay to carry around a leopard skin suitcase with punk rock stickers on it instead of a book bag because she has to be painfully counter-culture. She’s not in any position to be making decisions about having sex with grown men.” And I, of course, being the precocious teenager that I was..
Jessa: Watch me do it. So then what we have is parents, concerned parents. I did not have concerned parents. At least, not in his area. But concerned parents will sometimes report the fact that their teenagers are having sex with somebody who is above the age of majority, and a criminal investigation will ensue. And the police will go and speak to the person who is the younger of the two people. Most often, when these investigations happen, and I would just go out there and say, we do have this tendency to make young boys, young men, perpetrators. And young women, victims. And most of the time, and there have been all sorts of equal protection challenges all over the country. But most of the time, when you see a prosecution like that, it’s because the man is a little bit older and the woman is a little bit younger. And even in situations where the genders are reversed, there’s sort of this light heartedness about the idea that a 16 year old would have sex with his teacher. There’s always a joke that, like, that’s the luckiest kid in the world, when he is still very technically a victim of child sexual assault.
Nick: And I mean, it would be interesting to run numbers to see if adult women who have sex with teen boys are treated less, more leniently than adult men who have sex with teenage girls. And I bet the answer is probably yes. It’s also less common. It happens. It definitely happens.
Jessa: But it is less common. So occasionally, you’ll have this where some third party reports this illegal sexual activity and the actual assenting parties want nothing to do with the prosecution. The guy obviously wants nothing to do with that because why would he volunteer for a prison sentence and the sex offender registry? But the young woman doesn’t desire that, either, maybe because she’s got a leopard skin suitcase with some punk rock patches on it and thinks she knows what’s best.
Nick: Thinks she knows what’s up.
Jessa: Right. The case that we’re gonna talk about next has elements of that all over it. And we wanted to pick a case that, number one: was not an athlete because we’ve done some athletes recently. And number two: was not in California.
Nick: Bad stuff happens outside of California.
Jessa: Bad stuff happens everywhere. Not just in California. And we got a lot of California stuff lately. And I think there’s actually a podcast called, like, Killifornia. It’s in my list of things to check out. I haven’t listened to it yet, but I think they just do California crime because there’s a lot of it. And on the subject of sex offence, that Ninth Circuit judge has just been accused of sexual harassment.
Nick: Alex Kozinski.
Jessa: Yeah, who is a prolific opinion writer and a highly regarded jurist.
Nick: He was the chief judge for the Ninth Circuit for a long time, and he’s one of those guys. Sort of like Scalia, who’s a brilliant writer and got a way with words, so yeah. He writes really colorful opinions and he’s also a brilliant guy. But apparently he’s, I mean, these are allegations in the last week, that he, according to a growing number of people, say he has really mistreated women in his employ for years.
Jessa: Lots of them. So many.
Nick: Like having them come into his office to show them pornography.
Jessa: One woman, her response was “So, are we done here?”which it’s not really funny but it’s kind of funny because what a classic response. “Are we done now? Can I.. I’m gonna go. I’m just gonna back out.”
Nick: One of these women who was, like, “Yeah. Judge Kozinski did this and this and this”, and you’re like, wow. Does that happen in the workplace? She said he would show her pornography and she would just freeze and be, like, “Is this happening?” And he would be, like, “So does this turn you on?” or something like that and she would just be, like, “No. That doesn’t do anything for me. Can I go now?”
Jessa: “Can I go? Good talk. Thanks for checking in on the porn. Glad we had that conversation, but I’m gonna disengage now.” So the case that we’re gonna talk about next was actually, the top count was a manufacturing of child pornography case. And this was in the 90s hayday of sex tapes or early 2000s. We’ll get to the exact date when we do this deep dive. But we’re talking about musician, I believe he won Grammys for “I Believe I Can Fly”. And writer of one of my, well, at least, singer, of one of my absolute favorite songs to have at the gym, which is the remix to Ignition: R. Kelly. And R. Kelly stood trial for a number of charges in the great state of Illinois, so a state that Nick has actually been a prosecuting attorney in, which neighbours Wisconsin, for those of you on the coast or outside of the U.S. that are listening to us, and don’t know anything about our fly-over states. It’s in the middle. And Chicago’s there. If you’re trying to find it on a map, look for Chicago. That’s where we are. And he was accused of making a sex tape where a person was visible with a mole that perhaps he had the same mole, doing all sorts of nasty things to a woman that prosecutors alleged was underage. And there were allegations of child sexual assault. There was allegations of manufacturing the child pornography for because of the simple fact that this video existed. And he stood trial and, ultimately, was acquitted of all charges. And so what we’re gonna do is talk about number one: how somebody gets acquitted when there’s a video tape?
Nick: It was special.
Jessa: Number two: we’re gonna tell you stories about his defence attorney who, Nick and I both met, and is quite a colorful character.
Nick: And an amazing lawyer.
Jessa: Right. And an amazing lawyer. And we’re gonna ask, we’re gonna attempt to ask some bigger questions about this problem of, what happens if the person who was the victim is not interested in participating in the prosecution?
Nick: Which happened in this case and does happen in cases from time to time.
Jessa: So that’s where we’re gonna go next. We’re gonna go through those laws and talk about that and some of the implications of it. We’re gonna talk about the coverage of that case and the verdict and the effect, if any. Some of the ripple effects we see when there is a highly publicized sex crime and the way that people react and pass new laws to try and correct what they perceive to be incorrect verdicts. We’re gonna talk about all of that stuff.
Nick: It’s gonna be fun. This is a wild case.
Jessa: I’m super excited to talk about this.
Nick: Beaucoup lawyering.
Jessa: Lots of lawyering. Lots of personality. Lots of video tape. Lots of things that should be private.
Nick: Lots of things that should be private, in our parlance. That’s private. These things are private.
Jessa: So that’s what we’re gonna talk about next. We’re gonna do those episodes on Sunday. That’s our plan still, I believe.
Nick: It is.
Jessa: It is. And we really hope that you will be interested in hearing us walk down that path of sexual offending and production of child pornography when we’re talking about an R & B musician.
Nick: Indeed. So I’m Nick.
Jessa: I’m Jessa. Join us on Sunday. Oh. Follow us here.
Nick: We gotta do that part. We gotta pimp it.
Jessa: We gotta pimp it. There. So, we worked pimp into this so that’s another area of sex crime that we can talk about some time.
Nick: Human trafficking. Pimping and pandering.
Jessa: That’s your favorite. You love human trafficking.
Nick: It is interesting.
Jessa: That’s probably not the way I should phrase that.
Jessa: Nick enjoys the statute of human trafficking. Do you remember when we were in Vegas a few years ago and there were all of those human trafficking posters everywhere. And then we went to some bar and we had to order all of our drinks at once, where it was, like, they brought us 12 Long Island Iced Teas because happy hour was closing, and that poor woman just could not speak a word of English and was in that Showgirl thing, and we’re pretty sure she’s who they’re talking about. I think she was the victim of human trafficking that the poster was warning us about. That was also when you took us on that walk through, like, skidrow, to get to the other side of Las Vegas.
Nick: To the Stratosphere. That was something I had in my head that was a good idea. Not so much.
Jessa: Anyway. We’ve digressed. So in the meantime, between now and Sunday, or whenever you feel like it. Go rate us on the Apple Podcast app or whatever app you use.
Nick: Come join us on Facebook.
Jessa: Our group is hilarious. They make us all sorts of funny little memes and have really great thoughtful nuanced discussions. We also have an Instagram and a Twitter feed at GettingOffPod. So come follow us. Come check us out. This episode was short so this might be a quickie, Nick.
Nick: This one could be a quickie.
Jessa: This, I think, officially qualifies. That was a listener term.
Nick: Right. Not a micro episode, but a quickie.
Jessa: But a quickie. So that’s our intro into a our little sex crimes policy discussion. And we hope that you’ll come back this weekend. And check out our deep dive into R. Kelly.
Nick: See you guys again on Sunday.
Jessa: Thanks so much for listening.