You are a lawyer in Tennessee.  John and his parents come to you for
legal advice.  John is 15 years old.  He has a checking account that
is jointly owned by him and his mother.  His friend, Jessica, is a
16-year-old lesbian.  Jessica asks John if he can buy her a membership
for a particular "softcore" pornographic website (located in America).
 She offers to pay him $50, even though the membership is only $10. 
So he buys a membership using an online check, and the check account
that is jointly owned by him and his mother.  He decides not to give
Jessica his username and password, since this would give her access to
his bank account number.  Instead, he uses an automated program to
download the photos and videos from the site.  He burns this onto an
unlabeled CD and gives it to her.  She pays him $50 in cash.  He
deletes his copy of the files from his computer and, shortly after, he
cancels his membership on the site.  A week later, when his parents
see the charge on the check account, they ask him about it and he
tells them the truth, but will not tell them Jessica's name.  He says
that Jessica would most likely be unwilling to give the CD back or
throw it away, even if she got her money back.  His parents are convinced
that what he did was illegal.  They are worried that they could be
help responsible.  They come to you with him for legal advice.  Has
John done anything illegal?  If so, what laws has he broken, and what
are the possible penalties?  What legal advice would you give him?

TIA
If you are a lawyer, judge or law student, please state this in your
answer.  If possible, provide links to online copies of any laws that
you refer to.

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Request for Question Clarification by scriptor-ga on 29 Nov 2005 17:22 PST

Should this be a request for advice relating to an actual legal issue,
I must inform you that Google Answers Researchers are not allowed to
provide legal advice.

Also, note that Google Answers discourages and may remove questions
that are homework
or exam assignments.

Regards,
Scriptor

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Clarification of Question by yomamadj1-ga on 29 Nov 2005 17:50 PST

This is not a homework or exam assignment.  The person referred to as
John, his parents, and I are aware that any answer provided here is
not intended to be legal advice, and that it may not be answered by an
actual lawyer.  We understand and accept that, because of this, it may
contain inaccurate information.

Dear yomamadj1-ga;

Thank you for allowing me an opportunity to answer your interesting
question. I am delighted to get a customer who actually understands
and appreciates the fact that the information provided in this forum
is not to be considered legal advice and as such is not suitable to be
trotted into court and used as a pro se defense strategy. However, I
don?t believe that it is necessary for a lawyer or a Judge to answer
your question [here] since the root of a hypothetical investigation
that might seek to convict the minor will originate with law
enforcement. Having said that, I am a 20+ year member of the
professional law enforcement community and I am well versed at
researching state statutes. With that in mind, along with the obvious
fact that some of what you are asking us is basically a solicitation
of person interpretation and opinion, here is what I found:

CHAPTER 17
OFFENSES AGAINST PUBLIC HEALTH, SAFETY AND WELFARE
39-17-911. Sale, loan or exhibition of material to minors.  
 
?(a)  It is unlawful for any person to knowingly sell or loan for
monetary consideration or otherwise exhibit or make available to a
minor:
  
(1) Any picture, photograph, drawing, sculpture, motion picture film,
video game, computer software game, or similar visual representation
or image of a person or portion of the human body, which depicts
nudity, sexual conduct, excess violence, or sado-masochistic abuse,
and which is harmful to minors; or
  
(2) Any book, pamphlet, magazine, printed matter, however reproduced,
or sound recording, which contains any matter enumerated in
subdivision (a)(1), or which contains explicit and detailed verbal
descriptions or narrative accounts of sexual excitement, sexual
conduct, excess violence, or sado-masochistic abuse, and which is
harmful to minors.

(b)  It is unlawful for any person to knowingly exhibit to a minor for
monetary consideration, or to knowingly sell to a minor an admission
ticket or pass or otherwise admit a minor to premises whereon there is
exhibited a motion picture, show or other presentation which, in whole
or in part, depicts nudity, sexual conduct, excess violence, or
sado-masochistic abuse, and which is harmful to minors.

(c)  A violation of this section is a Class A misdemeanor.  
  
(d)  It is an affirmative defense to prosecution under this section
that the minor to whom the material or show was made available or
exhibited was, at the time, accompanied by the person's parent or
legal guardian, or by an adult with the written permission of the
parent or legal guardian.?

LEXIS NEXIS
http://198.187.128.12/tennessee/lpext.dll/Infobase/19880/1aa25/1b08d/1b0dc?f=templates&fn=document-frame.htm&2.0

You will note that in paragraph (a) the statute says, in part, ?It is
unlawful for ANY person?? regardless of age to knowingly provide what
the statute considers obscenity AND (this is important) ?which is
harmful to minors?.

Clearly then it is not the age of the minor, nor the age of the
seller, nor even the material in question, rather the law cannot be
statutorily violation in this instance (in my opinion) unless it can
be proven that the ?softcore? material was in fact especially harmful
to the minor recipient. Again, in my opinion, I believe, from a law
enforcement standpoint that charging the 15 year old for supplying
softcore media to a 16 year old, under the best of circumstances would
be ill advises. Frankly, if one were to pursue criminal charges
against the 15 year old I think it would be difficult to successfully
argue (and prove, of course) in a court of law before a jury of peers
that this type of material is actually harmful to a mature 16 year old
(and in particular a 16 year old self-described lesbian who is
possibly more sexually sophisticated, or at the very least more
sexually aware than her contemporaries of 16, 17 or even 18 years
old).

Assuming the law enforcement agency did decide to bring charged
against the boy, as the boys lawyer this is definitely the route I
would take in his defense, arguing adamantly the softcore porn is
nothing more intense that what is seen on cable and satellite
television EVERY SINGLE NIGHT OF THE YEAR in this same jurisdiction
and both the 15 and 16 year old can legally view that material without
alarming any law enforcement agency because the material might somehow
be ?harmful? to them.

So you see, in this instance, while it is possible that a hardcore [no
pun intended] law enforcement agency might actually try to prosecute a
15 year old boy for violating Tennessee Code 39-17-911, I believe they
would have an impossibly difficult time successfully seeing the
conviction through (and even if they did I believe it could be won on
appeal). The answer to your question then depends on what (if anything
here) is considered ?harmful? to a minor. So what is considered
?harmful?? Well I?ll tell you?

Tennessee law defines harmful [in this context] this way:

"Harmful to minors" means that quality of any description or
representation, in whatever form, of nudity, sexual excitement, sexual
conduct, or sadomasochistic abuse when the matter or performance:

(a)  would be found by the average person applying contemporary
community standards to appeal predominantly to the prurient, shameful
or morbid interests of minors; and

(b)  is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable for minors;

and

(c)  taken as a whole lacks serious literary, artistic, political or
scientific values for minors.?

Clearly, in this day and age it would be quite a challenge to prove
that softcore material is considered harmful when it is widely shown
on mainstream television and acceptable by the public for it?s
artistic value, not to mention the prevalence of much more perverse
material that is undeniably harmful. It would, of course, require a
Judge and or a jury of peers to determine if the material was in fact
?harmful? as the intent of the law requires, but I personally believe
(in this case) that it is a no-brainer.

As for your question about the punishment in the [my opinion] unlikely
event there is a conviction; Tennessee Code 39-17-911 is classified as
a Class A Misdemeanor, the most serious classification of misdemeanor
offenses, for which the maximum penalty, according to the Tennessee
Board of Probation and Parole, is ?no more than eleven months and
twenty-nine days of incarceration?.

TENNESSEE BOARD OF PROBATION AND PAROLE
http://www2.tennessee.gov/bopp/bopp_faq.htm#What%20is%20the%20difference%20between%20a%20felony%20and%20a%20misdemeanor?

In my mind, not having seen the material you mentioned and based only
on what I know right now about the scenario you described, if I were
the Judge or a jury member I ABSOLUTELY WOULD NOT convict in this
case; and if I were a law enforcement officer or a prosecuting
attorney in this case I would not arrest nor indict anyone involved in
this case. As I said, I have been in law enforcement for more than 20
years and I can tell you right now that my seven year old can walk
into just about any rental or second hand store in the country and
legally rent or buy R-rated tapes containing softcore scenes such as
Caligula, Last Tango in Paris or The Graduate, even in some of the
strictest communities I would imagine, and probably never even get a
second look from clerks, prosecutors or law enforcement officers. The
membership fee likely covers even potential copyright issues so I
simply do not see a criminal violation in this case. Even so, a person
is presumed to be innocent until proven guilty so unless the law is
knocking on your door or asking your questions, you technically have
no legal problem. As always however I like to conclude my answers to
legal research requests with the reminder that it?s always best to
consult a licensed attorney.

I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise, I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


OTHER INFORMATION SOURCES

Defined above


SEARCH STRATEGY


SEARCH ENGINES USED:

Google ://www.google.com




SEARCH TERMS USED:

Tennessee

Code

Statute

Law

Legal

Obscene

Obscenity

Minor

Pornography

Harmful

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Clarification of Answer by tutuzdad-ga on 29 Nov 2005 20:29 PST

I apologize for this omission. Here is the link that describes what
"harmful" means in this context under Tennessee obscenity laws:
http://www.tncrimlaw.com/TPI_Crim/34_06.htm

Regards;
tutuzdad-ga

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Request for Answer Clarification by yomamadj1-ga on 29 Nov 2005 22:26 PST

You're answer was very thourough and I'll definitely rate it highly. 
I'm just wondering now whether softcore really describes the site
accurately.  I think it is probably more obscene than anything that
could be put in an R-rated movie.  It doesn't actually show any sexual
acts.  The closest thing on the site would be the very few photos on
the site that show lesbians kissing.  The vast majority of the photos
on the site show only one person.  Very few photos show clear images
of anything other than breasts.  But the site definitely has very
little artistic value.  It is in a sexual context.  The site does
require that you check a "I agree to the terms and conditions" box,
and if you read the terms and conditions, it says that no one under 18
can sign up.  But it isn't displayed very prominently anywhere.  I
decided not to post a link in my question because I wasn't sure if it
is against the Google Answers policies.  The site is suicidegirls
(dot) com.
Also, you didn't mention whether the parents could be held
responsible.  Maybe that was because of the typo in my original
question; my bad.

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Clarification of Answer by tutuzdad-ga on 30 Nov 2005 06:49 PST

You?ve apparently not seen the movie ?Caligula?. In that movie there
is not actual penetration scene or explicit scenes involving
genitalia, but in my opinion it?s about the raunchiest mainstream
commercial flick ever made ? yet it is still isn?t rated X.

As for your question about responsibility, generally speaking, in
criminal law each person is responsible for his own behavior. Unless
otherwise specified parents are usually not CRIMINALLY responsible for
their children?s behavior unless they actually enabled or contributed
to the crime itself. In civil law it is possible that someone might be
able to sue on the premise that your son ?aided? in the distribution
of pornography but even that would be weak because a minor cannot
contribute to the delinquency of another minor. If you found out about
this only after the fact it would seem to me that what we have here is
basically two minors acting irresponsibly ? period.

You brought up an interesting issue though in that the site requires
the customer to attest to the fact that he or she is an adult in order
to do business. This not only supposedly indemnifies the site from
liability but also places the responsibility back on the customer. As
a minor your son cannot legally enter into a contract so he (and you)
are probably not liable.

If you contact the TENNESSEE BAR ASSOCIATION you can get a referral to
an attorney who may offer a free consultation. During this brief
consultation you may be able to get all your questions answered from a
knowledgeable (licensed) source that can definitely tell you what you
need to know AND offer actual legal advice.

TENNESSEE BAR ASSOCIATION
http://www.tba.org/LawBytes/findalawyer.html


Regards;
Tutuzdad-ga

To the extent that somebody might infer the Tennessee statute to take
into consideration the maturity or sophistication of the minor
receiving the pornographic materials, the availability of similar (or
worse) pornography from non-local sources, to require a showing that
the material was particularly harmful to the recipient, or to require
actual harm to that minor, there is no support in the statute for any
one of those inferences. The statute applies local community
standards, and asks jurors to consider what the adult community would
deem suitable for minors. You can see how the jury would be instructed
on the Tennessee Criminal Law Resources website.
http://www.tncrimlaw.com/TPI_Crim/34_06.htm

While it is often said that minors cannot enter into contracts - that
is, that the contracts are void - it is more correct to say that most
contracts with minors are voidable by the minor. Unless the minor
seeks to avoid the contract, within the confines of public policy, it
remains in full force and effect. A contract with a minor is not
voidable by an adult party to the contract. Even where the minor seeks
to void the contract, an element of voiding a contract is the
restoration of the parties to their original condition. That may be
impossible due to the nature of the goods or services sold, or may
require the minor to pay restitution. (For example if a minor
purchases a car, drives it, then decides to void the contract of sale,
the minor would likely have to not only return the car, but also pay
for any damage and depreciation.) A minor cannot be required to pay
expectancy damages. (For example, if a minor voids a twelve month
membership contract after one month, the other party can keep the one
month membership fee, but cannot make a claim for profits expected
over the duration of the contract term.) As this is common law
doctrine, states can vary the contractual rights and obligations of
minors by statute.

Trivia: The wretched film Caligula is available in an R-rated edit, as
well as in a version that has variously been released as X, unrated,
and NC-17 - and those latter releases qualify as hardcore pornography.
The film has an impressive cast including Sir John Gielgud, Dame Helen
Mirren, Malcolm McDowell and Peter O'Toole - but don't take that as an
endorsement. It was produced by Bob Guccione, the creator of Penthouse
Magazine, who reportedly shot some additional porn scenes to add to
the film and, probably much worse, reportedly edited the film himself.