“You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a fifteen-year sentence would be appropriate,” says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums. “But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn’t fit the culpability.”
In his sentencing statement, Hamilton urges executive clemency for Rinehart. He points out that under federal law Rinehart received the same sentence someone convicted of hijacking an airplane or second-degree murder would receive. For a bank robber to get Rinehart’s sentence, Hamilton writes, “he would need to fire a gun, inflict serious bodily injury on a victim, physically restrain another victim, and get away with the stunning total of $2.5 million.” (You might also compare Rinehart’s punishment to the treatment given former Elkhart, Indiana, police officer William Lee. Lee, who had a history of “inappropriately touching” women while on the job, was recently fired for using the threat of an arrest warrant to coerce a woman into having sex with him. He was never criminally charged.)
Hamilton is not the first federal judge to express frustration over federal child porn sentencing laws. In May 2010, the New York Times profiled US District Court Judge Jack Weinstein, who after 43 years on the bench has essentially gone rogue, twice throwing out convictions of a man convicted of receiving child pornography because of the five-year mandatory minimum sentence attached to the offense. Weinstein has also indicated that in future child porn cases he will disregard the federal rules of criminal procedure and inform his juries of the sentences defendants will get if convicted.
Rinehart was convicted of producing child pornography. But in cases where a suspect is charged with receiving child pornography, prosecutors need not even show intent. The mere presence of the images on the defendant’s computer is enough to win a conviction. “Each image can be a separate count, so these sentences can add up pretty quickly,” Price says. “And with a video, each frame can count as a separate image. So if you accidentally or unknowingly download a video that’s later discovered on your computer, you could be looking at a really long sentence.”
In a 2010 survey by the US Sentencing Commission, 71 percent of the 585 federal judges who responded thought the five-year mandatory minimum for receiving child pornography was too harsh. Just 2 percent thought it was too lenient. Only the mandatory minimum for crack cocaine, which has since been reduced, met with wider disapproval.
“When judges don’t abide by sentencing guidelines, the logical conclusion would be that the guidelines are flawed, that they should be revised to better reflect culpability,” Price says. “Instead, the reaction from Congress is too often to make the guidelines mandatory, or to make the sentences even harsher.”
It could actually have been worse for Rinehart. Under federal law, he could have faced up to 25 years in prison. In exchange for a guilty plea, prosecutors agreed to seek only the minimum sentence. Unfortunately for Rinehart, that plea agreement also prevents him from challenging his conviction or sentence. His only hope for early release is executive clemency. Given the clemency records of the last two administrations, that does not seem likely.
Rinehart’s case also illustrates the advantages of federalism. Traditionally, criminal law has been left to the states. Age of consent in particular is an issue that is best decided at the state or local level, where lawmakers can set boundaries that reflect local values. The 1984 federal law that Rinehart was charged with breaking, which raised the federal age of consent for explicit images from 16 to 18, was passed under the authority of the Commerce Clause. According to the prevailing interpretation of the clause, the federal government has a legitimate interest in regulating the interstate sale and distribution of child pornography (by prohibiting it) to prevent the exploitation of children.
But the women Rinehart photographed were not children. Under Indiana (and federal) law, they were adults. Furthermore, Rinehart not only was not a producer of actual child pornography ; he was not even a consumer. His decision to photograph and upload to his computer photos and video of the two women had no effect whatsoever on the interstate market for child pornography.
You could argue that it makes sense to have a higher age of consent for sexually explicit photos than for sexual activity because photos can be preserved and distributed. That means one bad decision can cause lasting harm, something a 16- or 17-year-old disoriented by love or passion may not be mature enough to consider.
But as Hamilton points out in his sentencing statement, there is no indication that Congress had this rationale in mind when it raised the age of consent in 1984. Instead the congressional record indicates the reason for the change was that prosecutors usually are not able to track down the women depicted in explicit photos to verify their ages. With the cutoff at 16, prosecutors were having problems winning convictions if the girls depicted in the images showed any signs of puberty. Raising the age to 18, a House committee reported, “would facilitate the prosecution of child pornography cases and raise the effective age of protection of children from these practices probably not to 18 years of age, but perhaps to 16.”
In Rinehart’s case, however, there is no question about the age or identity of the “victims.” So why did Assistant US Attorney Steven DeBrota—who has won awards for his efforts to break up actual child pornography rings—decide to turn Rinehart’s questionable judgment into a federal felony?
“This seemed like it was all going to be sorted out locally,” says Stacy Rinehart, Eric Rinehart’s sister. “They had a deal worked out where they were going to charge Eric for some sort of misconduct, and he’d do time in a local jail away from other inmates. Police officers don’t tend to do very well in prison. But then the FBI got involved. And no one really knows why. I can only guess it was because Eric was a police officer when all this happened, and maybe they thought that made what he did worse. But he had a good record, and they never put on any evidence that he abused his position.”
DeBrota didn’t return my call requesting comment. But the fact that a federal prosecutor would pursue a case like this one demonstrates the problem of taking sentencing discretion away from judges. It is true that, technically, Rinehart violated federal law. But no reasonable person would call him a child pornographer, and it seems unlikely that Congress was thinking of people like him when they raised the federal age of consent for sexually explicit images. Putting him away for 15 years hardly feels like justice.
An Unfortunate Discharge Early in My Naval Career
TimElhajj
My first year in the United States Navy, I let another boy give me a blow job simply because he asked. Of course we were caught. If we hadn’t been caught, this wouldn’t be a story. I probably wouldn’t even remember the night in question. This was in San Diego, over 30 years ago, and we had been drinking. As far as oral sex goes, it was disappointing. He was young and inexperienced: a quiet, doe-eyed boy, big as an ox.
We had met earlier that year at a naval training facility in Connecticut, just before receiving our fleet assignments. I didn’t like him, but I didn’t dislike him either. I knew his name was Fear. In the military everyone goes by their last names. I don’t even remember his first. When we parted ways in Connecticut, I had no idea we’d meet again. After training, he had gone on to the fleet, while I was temporarily assigned to a recruiting office near my hometown, a small mill town in Pennsylvania. I was supposed to visit the local high schools in my dress whites, a choice duty they probably only gave me because I was 17. My mother had to sign papers so I could enlist.
But I never appeared at a single high school event that summer. I’d like to say this was because I didn’t want to be used as a tool for the man, but the truth is, I was scared. The thought of talking to a room full of students terrified me. I had been thrown out of high school three times: twice in my junior year, and then again as a senior. Chief among my problems was t
he knee-jerk way in which I responded to authority, though I would not have been able to describe it this way at that time. Even if I couldn’t articulate my problems, I knew I was deficient in ways that most students were not. I also understood that most adults—particularly the recruiting officers who were now my peers—did not suspect how lacking I was. I couldn’t bring myself to visit any of the school events the recruiters had organized, because I felt certain the students would see right through me, past my crisp starched creases and glossy black shoes to the little boy hiding inside. So I stuck with my own hometown crowd who were celebrating the onset of summer, or their own high school graduations, by shooting heroin instead.
I joined the fleet late in August.
Flying into San Diego, I knew I had missed movement of my newly assigned ship, a serious offense in its own right. But I wasn’t too concerned: I had come up with a pretty convincing lie. On the tender, a yeoman first class named Thompson took my packet of orders. He shuffled through the paperwork and said he thought I might have missed my ship’s movement. I launched into my innocent-boy routine—the surprised gasp, the agonized wringing of hands. I offered my story and then paced the tiny space, my forehead growing moist. I had only been chipping heroin, but despite these nominal amounts, I found myself irritable and restless, which I’m sure only added to the illusion I was trying to convey. Thompson did just as I hoped he would: in a commanding voice he told me to relax. To sit down. He would take it from here. Thompson was the yeoman for the Pacific Seaboard’s entire submarine fleet. I felt pleased that my little ploy had gotten the better of him, but it would cost me dearly in the months to come.
I eventually got a room in the barracks and waited for new orders.
In the base cafeteria, I ran into Quish, another sailor I knew from Connecticut. He had thin, dark hair, with a thick white strip that hung in his eyes. He was stationed on a boat out of Hawaii but was in San Diego for training. He seemed pleased to see me, and in his thick Boston accent invited me over to his room to drink. I readily agreed. As an afterthought, he mentioned that Fear was on his boat and in San Diego for the same training.
“You remember Fear?” he asked.
I shrugged. I had a vague idea who he might be.
Quish considered this for a second or two. His barrel chest heaved as he inhaled through his mouth, the way big men sometimes do. “Come by tonight,” he said. “Maybe you’ll remember when you see him.”
Later that night, I sat alone in a small office.
After pounding on my door at 4:00 a.m., a pair of burly MPs brought me here, a small building in an unfamiliar part of the base. We drove over in a dark sedan, the MPs quietly murmuring in the front, me in the back. The sky was dark, the cool air thick with the smell of the sea.
I heard people in the rooms outside the tiny office, but the blind on the door window was drawn, and I couldn’t see who was out there or how many there were. The metal desk in front of me had file folders and forms strewn across it. There was a torch lamp. Stacks of thick dark-blue binders were piled along one side of the room.
The pain in my back had mostly subsided, but to keep from aggravating my sore body, I sat up in my seat and waited for whatever would happen next. Although I was in the thick of trouble, I felt weirdly calm, which I couldn’t explain. I felt as if I were watching a story unfold, even though I knew this was my story, and these events were happening to me.
In walked two men in rumpled dark suits and thin, loosened neckties. The stocky one sat behind the desk and introduced himself as an agent of the naval investigative service, which he told me was the NIS. He flashed an identification card and badge from a little leather holder. His partner unbuttoned his jacket and leaned against a file cabinet. He held a paper cup of coffee in his hand.
I had a terrible taste in my mouth from drinking earlier that evening, but I didn’t feel the least bit intoxicated now. In fact, my mind seemed to be in some hyperaware, vigilant place. I was thinking how strange it was that I felt so composed when I noticed that my knee was working itself like a piston. I willed my knee to stop, to match the calm exterior I wanted to present.
“Did you visit the Sperry’s infirmary earlier tonight? ” The agent behind the desk asked. The USS Sperry was the tender moored to the pier. He held some paperwork that I realized was probably from the doctors on the tender.
“I did,” I said. No point lying here.
“Why?” he wanted to know.
“I got into a fight,” I said.
“With who?”
“A guy in the barracks named Quish,” I said. I went over all this with the doctors, so I was sure it was in his report. What wasn’t in his report was this: Right after the fight with Quish, I had raced to the Sperry. Not because I was hurt—although I did get the worst of the fight—but to try to weasel out of the mess that I knew was about to go hot. My goal was to get something in writing that offered me some plausible deniability. Quish was to be my main opponent, and this time I wanted to put up a better fight.
“Why were you fighting?” the agent asked.
My voice stuck: this was the $64,000 dollar question.
“You should ask Quish,” I said. “He started it.” This was true.
Quish had hammered with his fists on my barracks door. I wanted to go out there and calm him down. Play it off like he was drunk. Like he had certainly not seen what he thought he’d seen. But there is something about witnessing an act of homosexuality that so wounds and incenses a certain type of man, he cannot be reasoned with. And if he cannot be reasoned with, you should certainly not attempt to lie to him. But I didn’t realize any of this at the time. I opened the barracks door to boldly assert my innocence and Quish promptly bowled me over. I would have taken a beating, but Fear came out of the closet (literally) and saved my ass.
Watching those two titans crash around the room was like watching one of those old Japanese monster movies from the 60s. For such a quiet boy, Fear knew how to defend himself. Quish soon retreated to his end of the hall, screaming, “Faggots! Goddamn, fucking faggots!”
“Why do you think you were fighting?” the agent asked.
The doctors on the Sperry had not pressed this issue. This was my first inkling that things had escalated, gone from bad to worse. This was no more than six hours after Quish saw Fear and me through the barracks window, and the barracks fight that followed.
“He was drunk,” I said. “We had been drinking.”
A big sigh from the agent leaning on the cabinet. “Show him,” the agent said to his partner. He straightened and sipped his coffee.
“Just show him,” he repeated.
“Hold on,” the seated agent said. He sounded annoyed. He cocked his head toward his partner, holding out his hands palm up. “I got this. I got it.”
Placing his hands on the desk in front of him, the seated agent leaned forward.
“You,” he said to me, “are a homosexual.” He paused here for a beat. “And we do not allow homosexuals in the United States Navy.”
I was shocked at his blunt accusation.
I didn’t think of myself as a homosexual, even though this was not the first time I had had sex with a man. I didn’t even use the word homosexual. I said faggot, or maybe queer. If I was trying to be diplomatic, I might have said homo or fag.
When I was in high school, I hustled gay men, even though I knew there were more lucrative ways to make money—ways that didn’t come at such a high emotional cost. If I’d stolen hubcaps or engaged in an afternoon of shoplifting, I wouldn’t have spent endless hours agonizing over what those behaviors really meant about me. As an adult, I realize that I continued to hustle because I liked the attention, the power, and the money. But I especially liked to be prized by men, probably because I longed to bond with the men in my family—my father and older brothers—and rarely succeeded.
When my boyhood friend—let’s call him Smack—first suggested hustling, he did so by taking me aside and asking if I’d ever had
a blow job. Yes, I lied immediately, even as I felt the blood rushing to my face. We were in the apartment of a man who distributed bundles of the local afternoon paper from the back of his Ford station wagon. He was in the back room, a balding man, with a greasy wisp of a ponytail and a mouth filled with twisted teeth. Smack saw through my lie and started to snicker. I assured him that, yes, I had, even as I grew embarrassed by the whiny tone of my voice. Smack swallowed his laugh and whispered, “Homos give the best head.” I loved the low conspiratorial tone of his voice, loved the idea of receiving a secret from him, of being in his confidence. He had already quit school. He was good with his fists and one of the first to walk around our small town with his shirt off at the start of May—ribs, bony shoulders, and curly brown crown. Without naming any names, Smack assured me that this was what everyone did. I felt my determination wane. Homos give the best head.
I named a mutual friend—Smack solemnly nodded—and then I named another. He leaned toward me, brought his lips to my ear. “Everyone,” he whispered.
This turned out to be a lie. Smack and I were the only ones hustling gay men.
Before I agreed to go into the room with the paper delivery man, I wanted to ask Smack what it might mean for me to have sex with another man, especially if I wasn’t—I would have stumbled over what word to use here, and queer is probably the word I’d have settled on, had I been able to ask the question. But I couldn’t. I couldn’t figure out how to pose the question. Instead, I asked Smack about the paper delivery man’s mangled teeth. Would it hurt, I wanted to know.
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