our our second case on the call the docket is case number one twelve seven fifty four people versus marshall c holland's agenda number two counsel for the poet you may proceed taken sexual photographs of someone who is under the age of eight came the facts of the case where i disputed it was a stipulated bench trial in fact in december of two thousand and eight the defendant was having illegal sexual relationship with his girlfriend evi having sex one night when avi was just three months shy of her eighteenth birthday they decided to photograph themselves this year hollins used his cell phone to take some pictures that were admitted  than that they are physically mature human beings these are pictures that were totally unsuitable for any use by anyone other than a v in the store hollins at a v s request mr holland's emailed the pictures to her mother was apparently looking at a v c mail and she intercepted she brought them to the police who then contacted mr holland's mr holland's readily admitted to the sexual activity with a b because it was legal she was seventeen years old however he was very surprised to learn that the photography of the legal sex act was a class one felony and he is now serving eight years in prison for having taken these pictures and then he is going to have to register as a sex offender for the rest of his life so the question this case presents is those in law which makes it a class one thing well any to photograph a seventeen year old who is engaged illegal sexual activity in any way address let alone advance the legitimate purposes of the child pornography statute this is a racial basis analysis yes it is yes we recognize that there because the state has a compelling need to protect children from sexual exploitation and abuse and it is this is why because that is the compelling need that does address this is why in people v l xander this court held that the portion of the child pornography statute there criminalizes computer generated images of children was not constitutional because the application of the statute to images that were produced without involving real children cannot possibly be intrinsically related to the statutory purpose of preventing real children from sexual abuse and exploitation of children so this means that like  alexandria this court basically recognized that we cannot separate the sexual exploitation and the abuse from the photography and still have a constitutional statue a photo of this taken of consensual legal sexual activity has nothing to do with sexual abuse and exploitation a seventeen year old can't legally consent to engaging in sexual relations so sexual  sexually active seventeen year olds are not being abused or exploited they are instead making the decision which the law allows them to make which is why there are not to engage in sexual activity it is a big choice the  consequences of making such a decision poorly can be terrible they can be socially transmittable diseases unwanted pregnancy but i was just later nevertheless decided that it is  seventy year old is old enough to make that decision how do you address states argument that seventeen year olds able to have consensual sex or not are not adults and they go on to say that they're still minors or  the legal for example they can't vote they can't drink alcohol they can't get married without runnels consent can't this situation be more subtle th having sex where they they know enough to maybe have birth control at seventeen but they don't know the subtleties of being involved in an pornographic illustration well i think what my but my greatest that is that we need to look at the purpose of the statute itself it's true that there is this problem that anybody would be they seventeen or fifty seven might have terrible judgment when it comes to a  know being photographed under such circumstances because anybody can have repercussions that are horrible but the purpose of the statute is to protect children from sexual exploitation and abuse and the problem is that the problem with the statute is that this it's the sexual exploitation and abuse that's at the heart of the statute and the eight a seventeen year old is not being sexually abused or acts lighted when she has  it seems part and personal of your urge to admit that the illustration of pornographic images use equated with the sexual act so right i mean every time you start talking about this you're saying a seventeen year old isn't being exploited because it's legal for her to have consensual sex but don't we to understand your argument don't we have to equate that with the distribution of pornographic well i believe that this this is what brings this case so close to people v l xander because they're too there were people who were not really children being depicted as as children insects there so she brings it closer child pornography i mean it really they are pornographic images of children whereas as an aside i would note that a seventeen year old generally speaking is probably not going to be a very suitable subject for a child pornography picture because it's their bodies aren't the kind of bodies that child people who view child pornography would be interested in they they look more like adults but here  kind of not a real chill child for the purpose of of these sex offense statutes in the state of illinois because it's child pornography and and i  guess sexual assault sexual abuse they are all sex offenses and so we need to have consistency within within they act sets of statutes in order to have a rational scheme and a rational application of zer yes yes we are we acknowledge there is that back case and there are a handful of cases across the country where the discrepancy between the age for consent for sexual relations  while a seventeen year old may be able to make sound decisions regarding pregnancy or the risk of part of an i want to pregnancy and the risk of a specially transmitted disease they will not be able to make  regarding the risks attached to photography and again i think this is moving far afield from the need to protect children from abuse and exploitation the a seventeen year old is far more  to be photographed i mean they because they can have consensual sacks there's going to be all the incidences involving consensual sex and where will be the incidences involving non conceptual stuff if it was not consensual then it would be a l i believe that everybody has a reputation to lynch us by depiction and they in the lewd photograph to be a child or not but when it's a child the child has been abused and exploited in order to have been put in a position to be a subject for it because they can't have any legal facts they can't consent to sexual activity at all however that's what creates the problem with the statute because it's getting that for one year these people who can have legal sexual activity and well i got to say in the state's case they did go out looking for examples and they came up with four articles none of which really showed illustrated the theory that a seventeen year old could have these problems but i think i think i think you're right i think that certainly anybody who indeed but certainly i mean divisively it poses for a sexual picture can have such problems what but the statute that's not fashion was a problem telling the difference in the age she was sixteen there was a problem telling the difference between a fifteen year old and a sixteen year old in a picture because some fifteen year old not at all not at all these are they asked very they're very grainy they were taken by a style phone at night it is only the power it is just nothing it couldn't possibly possibly the the mother did but that was because she found it in her daughter's email sent to her daughter by her daughter's boyfriend and so she would further as to worship her yet she did she did make the claim that she knew it was her because she knew her daughter photographs that are taken of real children being sexually exploited and abused in photographs that are taken by legally consenting sexually active people and that the latter is innocent conduct and then of itself it only becomes a crime because of the picture so it's comparable in the identity theft statute it was where people who were doing the very same thing that somebody would do the illegal act we're doing it for a completely benign purpose such as using identity identification information of another to check marathon chicago marathon results or something of that sort  i guess i will just i'd just like to summarize that when the statute is supplied to people like mr holland's it does not address the statutory purpose of protecting children from sexual abuse and exploitation to register as a sex offender for the rest of his life and on top of the actors who explained in our brief criminalizing the otherwise legal socially acceptable sexual practice of photographing private intimate behavior for personal use conflicts with the principles that underlie the privacy clause of our state constitution and the nice people who have seventeen year old sex partners equal protection under the law and so probably of these reasons and those that are in our briefs we ask that you find the child pornography statute unconstitutional as applied to people like mr holland's and that you reverse this conviction thank crux of their position seems to be that a seventeen year old is not a real child and is is therefore not a suitable subject of legislative protections of children but this is simply a dispute as to whether the legislature could rationally categorize a seventeen year old as a child no argument can put forward that the legislature at the general somebody can't do that  the age of consent is a legislative determination reflecting a societal societal experience that's the maturity of children to engage in particular conduct new arguments been events as to whites irrational for the general assembly to find that a child has the maturity to make informed decisions about engaging in sexual activity but lacks the maturity to make the different decision about whether to moralize that sexual correct and those are that's not an irrational distinction to make just that the dangers posed by gauging in sexual activity are materially different from the dangers posed by sexual conduct this is not to say that the dangers of i'm sorry the difference between sexual activity and memorializing that sexual activity are materially different and counsel is correct that the risks of engaging in sexual conduct are serious but they are more concrete and somewhat more immediate more readily appreciated by as legislature found someone of seventeen years of age pregnancy and venereal disease which actually would define identifies in the opening brief as the risks of sexual conduct the risks of memorializing sexual conduct are somewhat subtle and accordingly somewhat more difficult to apprehend and to to make informed decisions about the different dangers  there are potentially having compromising photographs how and one for the rest of one's life and the examples that we cite in our brief it's not by any chance an exhaustive coming of the internet for any any article about compromising photographs being problematic later in life but they do show that there are are very real risks to having one's youthful indiscretions brought up subsequently and even if they aren't even if the defendants about how the lack of intention to distribute these photographs was somehow binding and they would never be distributed just the the threat of potentially having the distributed once this photograph is created it's it exists and it is possible that it gets out unintentionally or otherwise and that risk and be psychologically harmful to children and the ledge of the general assembly was not irrational or finding that that risk was real and and worth protecting children from really defendant isn't challenging the tailoring of the statute it's they're not saying that it's overbroad what they're saying is that the general assembly has mis identified a child pornography featuring seventeen year olds as a socially harmful product in this case the general  identified pornography depicting seventeen year olds as as harmful and accordingly they tailored a statute that perfectly targets that harmful product they said that it is prohibited to produce pornography depicting sexual conduct of children under eighteen that is perfect doesn't include any point obviously that doesn't include children under eighteen defendant challenges the general assembly's power to identify that as a social harm they dispute that it's it's harmful enough to warrant this attention but that's not an element that's irrational to protect children from this harm what it really is is a plea for the substitution of judicial determination such to what is or is not sufficiently dangerous to warrant legislation for the general assembly's determination on that issue so an example would be if the general assembly determines that marijuana is a socially harmful product for all of the reasons that it may and it decides that the way to prevent the harms from this product are to prohibit the cultivation of marijuana under defendant's conception of a due process challenge and marijuana grower could challenge the statute under process grounds and say that it's it has no rational basis because marijuana is not really socially harmful if the court deciding that claim agrees with him a defense inviting that court to substitute is judgment for the general as to what is or is not an appropriate target for criminal legislation and that that's simply not how due process challenges work the question is whether or not the legislature as a rationally whether the legislation is rationally related to a legitimate state interest here the state interest is protecting the psychological and physical welfare of children defined by the legislature rationally defined by the legislature as people under eighteen from the harms of child pornography the defendant tries to narrow that to say the harms of child pornography or the exploitation of children but exploitation doesn't merely mean the nonconsensual penetration of a child too young to consent exploitation could easily mean the protection of a child to going to consent from the homes of being depicted in pornography this case really isn't like alexander or the us supreme court case alexander followed ashcroft the free speech coalition in those cases the courts were looking at virtual child pornography where there were no actual children involved so there were no interests of those children reputational rather was to protect the next nearest thing would be the second and and eighth circuit decision in a hotel and bach respectively where the courts held that morphed images were not protected because they still implicated the real interests of real children morphed images were innocent images of children that had been altered to make it appear that those children were engaged in sexual conduct even of the children were actually engaged in the sexual conduct depicted making it appear that they were affected their real interests and that shows that the harm of actual engaging in sexual conduct is independent from the harm of being depicted in gauging that sexual conduct here the general assembly determined that a seventeen year old was sufficiently mature to make decisions about the harms of engaging in sexual conduct and was not sufficiently mature to make decisions about them whether to assume the risk of having that conduct memorialized because that determination was rational the statute satisfies  the rational basis test is not something that is somehow in a sense regardless of a legislative determination as to its harmfulness its innocence in the respect that is unrelated to the harm identified by the legislature and put forward as the just of and and justifying the legislation at hand so for example a madrigal the purpose of legislation was to prevent identity theft however imagine the statute magical prohibited it using any personal identifying information name two basically make any inquiry about about that person without express prior permission in that case because that that conduct was wholly unrelated to the legislative purpose preventing identity theft without a criminal intent to link it to the legislative purpose for example using someone's name to gain access information about their transactions for the purpose of committing identity theft for example that's hatch it was was unconstitutional here there's simply simply no innocent conduct this statute doesn't reach anything that the legislature has and identified as as a harmful product worthy of legislative targeting with criminal legislation and of course although this court is not limited to any of the rationales put forward by the general assembly in the legislative debate the reason that was put forward would also satisfy the rational basis test and that in forced into the i just have three things first saw i wanted to respond to justice burke's question regarding whether he had the e mail the photo to my client whether he would have been guilty and  picture about what was criminal about what happened here these were two people having in the scent i mean legal sacks and they did something that many many people in our internet is testament to how many people do on a daily basis they simply took pictures of each other clearly clearly for private purposes this case is probably the most extreme fact case we can have for analyzing the impact of the application of the statute to seventeen year olds because the facts are so there's just no possibility of any exploitation or abuse under these facts and finally i just want to point out that even though the age feeling changed in tone one nine hundred eighty five i taken until two thousand and twelve for us to be here today discussing this because there have been no cases that have arisen under this particular application of the statute since nine hundred eighty five i think that's a clear place in a car in a community college park well this particular encounter did yes but i think the privacy part is the it's the activity rather than the location and actually if this had happened out in broad daylight in the parking lot it would have only been a class a misdemeanor it's you know a part of this is the extremity of the of the penalty on top of it that makes it seven fifty four people versus marshall see hollins has taken under advisement the judge the number two