Let me just start out by saying that this is NOT the post I wanted to be writing right before Christmas! — but it has the potential to be important…
I read a federal appellate court this morning out of Vermont that contained language I find highly alarming. The case is United States v. (Benjamin H.) Weisinger (2d Circuit 2014). Mr. Weisinger was convicted of producing and receiving child pornography, involving photographs of his girlfriend’s minor daughter. The language in the opinion that I find alarming for people in our line of work is the following:
“Similarly, evidence of Weisinger’s online viewing of erotic incest stories, particularly involving stepfathers and stepdaughters, was probative of his intent to produce and receive pornography involving the minor daughter of his live-in girlfriend. See United States v. Brand, 467 F.3d 179, 197 (2d Cir.2006) (holding that evidence of prior acts is probative of intent to commit charged acts if there is ‘‘similarity or some connection’’ between acts (internal quotation marks omitted)).”
In plain English (or as plain as this lawyer can make it), what this case is holding is that the fact that this defendant searched for and read online fictional erotic incest stories involving stepfathers and stepdaughters constituted evidence of a “prior act” (which is legal shorthand for “prior bad act”, which can be a prior crime or simply a prior “unsavory” act), and that evidence was admissible in court to prove that the defendant committed the crime charged.
Let me repeat: the act of searching for and reading erotic incest fiction online was considered evidence of intent to commit the crime of production of child pornography, where the victim of the crime was in an “incest-like” relationship with the defendant. (I was unable to ascertain whether the particular story cited by the court was a published story, or something on a site such as Literotica.) Sex and pornography offenses involving children have their own separate body of law, so it’s possible that this precedent might eventually be held applicable only to cases involving child sexual abuse and child pornography. But I would venture to say that most of us who write erotic fiction (and definitely those of us who write same-sex, poly, BDSM, kink/fetish, etc.) write about acts considered by some persons, and in some parts of the country, “unsavory acts”. I’m not holding my breath.