United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 21]
S. GWIN UNITED STATES DISTRICT JUDGE.
Anthony Gore was indicted on one count of receiving child
pornography and two counts of persuading, inducing, enticing,
or coercing a minor to engage in sexually explicit
conduct. His conduct involved two minor victims:
Minor Victim #1 and Minor Victim #2. Gore moves to dismiss the
receiving pornography charge with respect to Minor Victim #1,
arguing that prosecuting him for receiving the images at
issue in this case violates the Fifth and Tenth
Amendments. The Court disagrees and DENIES the motion.
November 2016, an Ohio State court sentenced Gore to one year
in prison. At the time, he was in a consensual sexual
relationship with Minor Victim #1. Gore was twenty-three years
old and Minor Victim #1 was sixteen years old. Because the age
of consent in Ohio is sixteen, the sexual relationship between
Gore and Minor Victim #1 is not, in-and-of-itself, illegal.
While in state prison, Gore arguably received sexually
explicit images from Minor Victim #1 and was charged with
receiving child pornography.
core of Gore's argument is that, since it is legal in
Ohio for him to have sex with Minor Victim #1, it should be
legal for him to receive sexually explicit photos of her in
Ohio. Of course, federal law says otherwise. Receiving
sexually explicit images of any person under the age of
eighteen is prohibited. Stymied by the text of the relevant
federal statues, Gore argues that those statutes are
unconstitutional as applied to him.
first contends that applying the child pornography statute to
him violates his substantive due process
rights. The Supreme Court has
recognized that adults have a constitutional to engage in
private, consensual sexual behavior. But Gore isn't being
prosecuted for having sex with Minor Victim #1, he is being
prosecuted for receiving sexually explicit images of her. And
that is altogether different.
the state of Ohio believes some minors-i.e. those over the
age of sixteen-are capable of consenting to sexual conduct,
the federal government is not required to permit Gore to
receive sexually explicit images of those
minors. We are a federal republic. Neither Ohio
nor the United States must follow the other's criminal
law. The federal government, after all, has a compelling
interest in protecting minors from sexual
exploitation. And it is perfectly free both to define
minors as those under the age of majority and to determine
that, notwithstanding their ability to consent to sexual
conduct, minors over the age of sixteen should not be
permitted to be the subject of pornography. The harms
that may result from appearing in child pornography are, at
least to some extent, distinct from the harms that may stem
from sexual conduct. For example, child pornography can
survive indefinitely on the internet.
next contends that the prohibition on receiving child
pornography is unconstitutionally vague. But the
statute couldn't be clearer. It prohibits any person from
“knowingly receiv[ing] . . . using any means or
facility of interstate or foreign commerce . . . visual
depiction[s] involving . . . a minor engaging in sexually
explicit conduct.” And it defines a minor as anyone
under eighteen years of age. That hardly leaves anyone
guessing as to what is prohibited.
age of consent law does not create any confusion. It
establishes the age at which a person can consent to sexual
intercourse. It says nothing about when a person can
legally appear in pornography.
the Court persuaded that the statute creates a risk of
arbitrary enforcement merely because the Department of
Justice has not pursued every teenager who has taken,
transmitted, or received a sexually explicit photo.
Gore argues that the federal child pornography statute runs
afoul of the Tenth Amendment by infringing on Ohio's
authority to establish the age of consent. But
Ohio's age of consent is unaffected by the federal
prohibition on child pornography. Gore can still engage in
sexual conduct with minors over the age of sixteen in
Ohio. He cannot, however, receive sexually
explicit pictures of minors that have been transmitted via a
facility of interstate commerce.
as the Ninth Circuit has recognized, “the Supreme Court
has accepted the federalization of child pornography crimes
by upholding convictions brought under” the child
pornography statutes. And, unlike the statute in Bond
v. United States,  the child pornography statute at
issue here requires a connection to interstate
commerce. That brings it squarely within federal
of those reasons, the Court DENIES Gore's motion to