A.H., a child, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-0162

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 19, 2007, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR 
REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:   An appeal from the Circuit Court for Alachua County. 
Ysleta McDonald, Judge.

COUNSEL:   Nancy A. Daniels, Public Defender, and David P. Gauldin, 
Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant 
Attorney General, Tallahassee, for Appellee.

JUDGES:   WOLF, J. THOMAS, J., CONCURS; PADOVANO, J., DISSENTS WITH OPINION.

OPINION BY:   WOLF

OPINION:   WOLF, J.

A.H. challenges her adjudication of delinquency for producing, directing 
or promoting a photograph or representation that she knew included 
sexual conduct of a child in violation of section 827.071(3), Florida 
Statutes. She filed a motion to dismiss the charges alleging that the 
statute was unconstitutional as applied to her. She contended that, 
because the photographs were not actually distributed to a third party 
and the other participant in the sexual act was an older minor, her 
right to privacy was implicated and that criminal prosecution was not 
the least intrusive means of furthering a compelling state interest. The 
trial court ruled that there was a  [*2]  compelling state interest in 
preventing the production of these photographs and criminal prosecution 
was the least intrusive means of furthering the State’s compelling 
interest. We agree with this analysis and further determine that the 
privacy provision of the state constitution does not protect the 
behavior of appellant. We, thus, affirm.

By Amended Petition of Delinquency, 16-year-old appellant, A.H., and her 
17-year-old boyfriend, J.G.W., were charged as juveniles under the child 
pornography laws. The charges were based on digital photos A.H. and 
J.G.W. took on March 25, 2004, of themselves naked and engaged in sexual 
behavior. The State alleged that, while the photos were never shown to a 
third party, A.H. and J.G.W. e-mailed the photos to another computer 
from A.H.’s home. A.H. and J.G.W. were each charged with one count of 
producing, directing or promoting a photograph or representation that 
they knew to include the sexual conduct of a child, in violation of 
section 827.071(3), Florida Statutes. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 J.G.W. was also charged with one count of possession of child 
pornography under section 827.071(5), Florida Statutes (2005).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*3]

A.H. filed a motion to dismiss on October 24, 2005, arguing that section 
827.071(3), Florida Statutes, was unconstitutional as applied to her. 
She contended that her privacy interests were implicated in the charges, 
that she was actually younger than her alleged victim, J.G.W., and that 
criminal prosecution was not the least intrusive means of furthering a 
compelling state interest. A hearing was held on the motion to dismiss 
on November 30, 2005, after which the trial court issued an order 
denying the motion. The order included the following conclusions:

Assuming that the child’s right to privacy is implicated, the standard 
for evaluating whether the State may regulate the sexual conduct of 
minors, articulated in B.B. v. State, 659 So. 2d 256, 258-59 (Fla. 
1995), requires the State to show both that it has a compelling interest 
and that it is furthering this interest in the least intrusive manner.

As to the first prong of the test, whether the State has a compelling 
interest in regulating the sexual behavior of minors, this Court 
recognizes a compelling state interest in protecting children from 
sexual exploitation, particularly  [*4]  the form of sexual exploitation 
involved in this case. This compelling interest exists whether the 
person sexually exploiting the child is an adult or a minor and is 
certainly triggered by the production of 117 photographs of minors 
engaging in graphic sexual acts. State v. A.R.S., 684 So. 2d 1383, 1387 
(Fla. 1st DCA 1996).

The Court further finds that prosecuting the child under the statute in 
question is the least intrusive means of furthering the State’s 
compelling interest. Not prosecuting the child would do nothing to 
further the State’s interest. Prosecution enables the State to prevent 
future illegal, exploitative acts by supervising and providing any 
necessary counseling to the child. The Court finds that the State has 
shown that Section 827.071(3), Florida Statutes, as applied to the 
child, is the least intrusive means of furthering the State’s 
compelling interest in preventing the sexual exploitation of children, 
rendering the statute constitutional.

Three weeks later, A.H. entered a nolo contendere plea to the charge and 
was placed on probation. Based on the supplemental record that has been 
filed, we find appellant  [*5]  specifically reserved her right to 
appeal the issue raised on the motion to dismiss.

A.H. argues that the trial court erred in denying her motion to dismiss 
below because the statute is unconstitutional as applied to her. She 
relies, in part, on the 1995 Florida Supreme Court decision in B.B. v. 
State, 659 So. 2d 256 (Fla. 1995), in which she alleges the court held 
that a child’s privacy interests under article I, section 23 of the 
Florida Constitution are triggered by engaging in sexual conduct.

According to A.H., given the lack of a significant age difference or of 
any allegation that the pictures were shown to a third party, the only 
compelling state interest that could be involved here was the protection 
of the co-defendants from engaging in sexual behavior until their minds 
and bodies had matured. A.H. argues that prosecuting her for the 
second-degree felony of promoting a sexual performance by a child was 
not the least intrusive means of furthering this interest. Therefore, 
she maintains that section 827.071(3), Florida Statutes, is 
unconstitutional as applied to her, and the trial court’s ruling to 
the contrary must be reversed.  [*6]

Implicit in A.H.’s argument is that article I, section 23 protects a 
minor’s right to have sexual intercourse and that this right of 
privacy extends to situations where the minor memorializes the act 
through pictures or video. We cannot accept this argument.

In State v. A.R.S., 684 So. 2d 1383 (Fla. 1st DCA 1996), we addressed 
the constitutionality of section 827.071(3), Florida Statutes, the same 
statute at issue in this case. In that case, the court assumed “that a 
minor’s privacy interests were implicated.” Id. The court went on to 
hold that the State had a compelling interest “to protect minors from 
exploitation by anyone who induces them to appear in a sexual 
performance and shows that performance to other people.” Id. at 1387.

As Judge Allen noted in his concurrence in A.R.S., the law relating to a 
minor’s right of privacy to have sex with another minor is anything 
but clear. See also State v. Raleigh, 686 So. 2d 621 (Fla. 5th DCA 
1996). It is unnecessary, however, for us to enter that quagmire. The 
question before us is, even assuming that the privacy provision of 
article I, section 23 of the Florida Constitution  [*7]  extends to 
minors having sexual intercourse, whether that right extends to them 
memorializing that activity through photographs.

“Florida’s right to privacy is a fundamental right that requires 
evaluation under a compelling state interest standard. However, before 
the right to privacy attaches and the standard is applied, a reasonable 
expectation of privacy must exist.” Bd. of County Comm’rs of Palm 
Beach County v. D.B., 784 So. 2d 585, 588 (Fla. 4th DCA 2001). Whether 
an individual has a legitimate expectation of privacy is determined by 
considering all the circumstances, especially objective manifestations 
of that expectation. City of N. Miami v. Kurtz, 653 So. 2d 1025, 1028 
(Fla. 1995).

A number of factors lead us to conclude that there is no reasonable 
expectation of privacy under these circumstances.

First, the decision to take photographs and to keep a record that may be 
shown to people in the future weighs against a reasonable expectation of 
privacy. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 
(S.D. Cal. 2005) (holding active duty military members who allowed 
photographs to be taken  [*8]  of prisoner abuse did not have reasonable 
expectation of privacy under state constitution).

Second, the photographs which were taken were shared by the two minors 
who were involved in the sexual activities. Neither had a reasonable 
expectation that the other would not show the photos to a third party. 
Minors who are involved in a sexual relationship, unlike adults who may 
be involved in a mature committed relationship, have no reasonable 
expectation that their relationship will continue and that the 
photographs will not be shared with others intentionally or 
unintentionally. One motive for revealing the photos is profit. 
Unfortunately, the market for child pornography in this country, 
according to news reports, appears to be flourishing. See, e.g., 
“Child porn ring busted, 27 face charges,” March 15, 2006, 
http://www.msnbc.msn.com/id/11839832; Jeremy W. Peters, Another Arrest 
in Webcam Pornography Case, N.Y. Times, May 16, 2006, available at 
http://www.nytimes.com (search the NYT Archive since 1981 for “Webcam 
Pornography Case,” then click on title). These 117 sexually explicit 
photographs would undoubtedly have market value.

In addition, a number of teenagers want to let  [*9]  their friends know 
of their sexual prowess. Pictures are excellent evidence of an 
individual’s exploits. A reasonably prudent person would believe that 
if you put this type of material in a teenager’s hands that, at some 
point either for profit or bragging rights, the material will be 
disseminated to other members of the public.

Distribution of these types of photos is likely, especially after the 
relationship has ended. It is not unreasonable to assume that the 
immature relationship between the co-defendants would eventually end. 
The relationship has neither the sanctity of law nor the stability of 
maturity or length. The subjective belief of these co-defendants that 
the photos might not be shared is not dispositive. In fact, the 
defendant in this case expressed her concern to law enforcement that her 
co-defendant might do something disagreeable with the photographs.

The mere fact that the defendant may have subjectively believed that the 
pictures would remain private does not control; it is whether society is 
willing to recognize an objective expectation.

As this court previously stated in State v. Conforti, 688 So. 2d 350, 
358-59 (Fla. 4th DCA 1997):  [*10]

Although a person’s subjective expectation of privacy is one 
consideration in deciding whether a constitutional right attaches, the 
final determination of an expectation’s legitimacy takes a more global 
view, placing the individual in the context of a society and the values 
that the society seeks to foster. The right to privacy has not made each 
person a solipsistic island of self-determination.

Bd. of County Comm’rs of Palm Beach County v. D.B., 784 So. 2d 585, 
590 (Fla. 4th DCA 2001).

The fact that these photographs may have or may not have been shown in 
no way affects the minor’s reasonable expectation that there was a 
distinct and real possibility that the other teenager involved would at 
some point make these photos public.

Even assuming, arguendo, that a reasonable expectation of privacy 
existed, the statute in the instant case serves a compelling state 
interest. In A.R.S., 684 So. 2d at 1387, this court addressed the 
statute in question where a minor had videotaped himself involved in 
sexual conduct with a female minor and played the videotape for a third 
party.

Assuming that a minor’s privacy interests are  [*11]  implicated in 
the instant case, we recognize that the state’s compelling interest in 
section 827.071 is different. The statute is not limited to protecting 
children only from sexual exploitation by adults, nor is it intended to 
protect minors from engaging in sexual intercourse. The state’s 
purpose in this statute is to protect minors from exploitation by anyone 
who induces them to appear in a sexual performance and shows that 
performance to other people. See Schmitt v. State, 590 So. 2d 404, 412 
(Fla. 1991) (stating that the “obvious purpose” of section 827.071 
“is to prohibit certain forms of child exploitation”), cert. denied, 
503 U.S. 964, 112 S. Ct. 1572, 118 L. Ed. 2d 216 (1992). The State’s 
interest in protecting children from exploitation in this statute is the 
same regardless of whether the person inducing the child to appear in a 
sexual performance and then promoting that performance is an adult or a 
minor.

Id.

Appellant asserts that the State only has a compelling interest when the 
photograph or video is shown to a third party. The Legislature has, 
however, recognized a compelling interest in seeing that the videotape 
or picture  [*12]  including “sexual conduct by a child of less than 
18 years of age” is never produced. § 827.071(3), Fla. Stat.

As previously stated, the reasonable expectation that the material will 
ultimately be disseminated is by itself a compelling state interest for 
preventing the production of this material. In addition, the statute was 
intended to protect minors like appellant and her co-defendant from 
their own lack of judgment.

Without either foresight or maturity, appellant engaged in the conduct 
at issue, then expressed concern to law enforcement personnel that her 
co-defendant may do something inappropriate, i.e., disseminate sexually 
explicit photos that were lodged on his computer. Appellant was simply 
too young to make an intelligent decision about engaging in sexual 
conduct and memorializing it. Mere production of these videos or 
pictures may also result in psychological trauma to the teenagers involved.

Further, if these pictures are ultimately released, future damage may be 
done to these minors’ careers or personal lives. These children are 
not mature enough to make rational decisions concerning all the possible 
negative implications of producing these  [*13]  videos.

In addition, the two defendants placed the photos on a computer and 
then, using the internet, transferred them to another computer. Not only 
can the two computers be hacked, but by transferring the photos using 
the net, the photos may have been and perhaps still are accessible to 
the provider and/or other individuals. Computers also allow for 
long-term storage of information which may then be disseminated at some 
later date. The State has a compelling interest in seeing that material 
which will have such negative consequences is never produced.

The decision of the trial court is affirmed.

THOMAS, J., CONCURS; PADOVANO, J., DISSENTS WITH OPINION.

DISSENT BY:   PADOVANO

DISSENT:   PADOVANO, J. dissenting.

Section 827.071(3) Florida Statutes was designed to protect children 
from abuse by others, but it was used in this case to punish a child for 
her own mistake. In my view, the application of this criminal statute to 
the conduct at issue violates the child’s right to privacy under 
Article 1, Section 23 of the Florida Constitution. For this reason, I 
would reverse.

The supreme court held in B.B. v. State, 659 So. 2d 256 (Fla. 1995), 
that  [*14]  a statute prohibiting unlawful carnal intercourse is 
unconstitutional as applied to a minor. In support of this holding, the 
court reasoned that the citizens of Florida had issued a “clear 
constitutional mandate in favor of privacy” by adopting Article 1, 
Section 23 of the Florida Constitution. B.B. 659 So. 2d at 259. The 
court went on to say that the right of privacy is not limited to adults, 
but that it applies to children, as well.

I am not able to reconcile the supreme court’s holding in B.B. with 
the court’s decision in this case. The majority points out that the 
child in B.B. was charged with unlawful sexual intercourse while the 
child in this case was charged with photographing an act of sexual 
intercourse, but I think this a distinction without a difference. As in 
B.B., the child in this case had sex with another minor. The only 
additional fact is that, in this case, the two took photographs of 
themselves and shared the photos with each other. There is no indication 
that the photos were intended to be any less private than the act 
itself. Consequently, I am unable to conclude that Article 1, Section 23 
is inapplicable or that it somehow offers  [*15]  the child in this case 
less protection.

The majority is correct to say that B.B. involved a prosecution under a 
different statute. However, the principle of constitutional law 
articulated in the opinion is not one that applies only to a particular 
statute. To the contrary, it is a principle that would apply to any 
statute that is used in a way that violates the right of privacy. If a 
minor cannot be criminally prosecuted for having sex with another minor, 
as the court held in B.B., it follows that a minor cannot be criminally 
prosecuted for taking a picture of herself having sex with another 
minor. Although I do not condone the child’s conduct in this case, I 
cannot deny that it is private conduct. Because there is no evidence 
that the child intended to show the photographs to third parties, they 
are as private as the act they depict.

The majority relies on the decision of this court in A.R.S. v. State, 
684 So. 2d 1383 (Fla. 1st DCA 1996), but that case does not support the 
decision the court has made here. In A.R.S., the child made a videotape 
of himself and a younger female child engaging in a sexual activity and 
then played the videotape to a third  [*16]  person at a time when the 
female was not present. The act of displaying the videotape was the main 
reason the court gave for its decision. As the court explained, “The 
state’s purpose in [section 827.071] is to protect minors from 
exploitation by anyone who induces them to appear in a sexual 
performance and shows that performance to other people.” A.R.S., 684 
So. 2d at 1387. In contrast, the child in this case did not show the 
photographs to anyone. Nor has she been charged with doing so. She 
stands accused of nothing more than taking photographs of herself and 
her boyfriend.

The fact that the delinquent child in A.R.S. showed the videotape to a 
third party is significant for the reasons given by the court and for 
another reason not mentioned in the opinion. The voluntary publication 
of the videotape to a third party completely undermined the delinquent 
child’s claim of privacy. Unlike the accused child in this case, 
A.R.S. was not in a good position to claim that his actions were 
protected by the constitutional right of privacy. Whatever privacy 
rights he had in the videotape he made of himself and another child 
engaging in an intimate act, he gave up entirely  [*17]  when she showed 
the tape to another person.

The majority concludes that the child in this case did not have a 
reasonable expectation that the photographs would remain private. To 
support this conclusion, the majority speculates about the many ways in 
which the photographs might have been revealed to others. The e-mail 
transmission might have been intercepted. The relationship might have 
ended badly. The boyfriend might have wanted to show the photo to 
someone else to brag about his sexual conquest. With all due respect, I 
think these arguments are beside the point. Certainly there are 
circumstances in which the photos might have been revealed 
unintentionally to third parties, but that would always be the case.

That the Internet is easily hacked, as the majority says, is not 
material. The issue is whether the child intended to keep the photos 
private, not whether it would be possible for someone to obtain the 
photos against her will and thereby to invade her privacy. The majority 
states that the child “placed the photos on a computer and then, using 
the internet, transferred them to another computer,” as if to suggest 
that she left them out carelessly for anyone to find. That is  [*18] 
not what happened. She sent the photos to her boyfriend at his personal 
e-mail address, intending to share them only with him.

The method the child used to transmit the photos to her boyfriend 
carries some danger of disclosure, but so do others. If the child had 
taken a printed photograph and placed it in her purse, it might have 
been disclosed to third parties if her purse had been lost or stolen. If 
she had mailed it to her boyfriend in an envelope, it might have been 
revealed if the envelope had been delivered to the wrong address and 
mistakenly opened. As these examples illustrate, there is always a 
possibility that something a person intends to keep private will 
eventually be disclosed to others. But we cannot gauge the 
reasonableness of a person’s expectation of privacy merely by 
speculating about the many ways in which it might be violated.

The critical point in this case is that the child intended to keep the 
photographs private. She did not attempt to exploit anyone or to 
embarrass anyone. I think her expectation of privacy in the photographs 
was reasonable. Certainly, an argument could be made that she was 
foolish to expect that, but the expectation of a sixteen year old  [*19] 
  cannot be measured by the collective wisdom of appellate judges who 
have no emotional connection to the event. Perhaps if the child had as 
much time to reflect on these events, she would have eventually 
concluded, as the majority did, that there were ways in which these 
photos might have been unintentionally disclosed. That does not make her 
expectation of privacy unreasonable.

For these reasons, I believe the court has committed a serious error. 
The statute at issue was designed to protect children, but in this case 
the court has allowed the state to use it against a child in a way that 
criminalizes conduct that is protected by constitutional right of 
privacy. In the process, the court has rendered a decision that 
expressly and directly conflicts with the decision of the Florida 
Supreme Court in B.B. on the same point of law. The child in that case 
was prosecuted under a different statute, but the constitutional 
principles are the same and they should be applied in the same way in 
this case.