One statute that stood above all others was Virgina’s child pornography statute;162 It is very similar to § 750.145c, the Michigan Statute.163 Virgina’s statute states: “[a] person shall be guilty [for the] production of child pornography when: [a person p]roduces or makes or attempts or prepares to produce or make child pornography; or who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means.”164 The Eastern District Court of Virgina explained that the Virgina statute criminalizes those individuals who reproduce images by any means, which “includes those computer generated reproduction[s] of any sexually explicit . . . material.”165
The history of these statutes is not technically important because Michigan is not required to follow those states’ precedent; however, they do point out the options that the Michigan legislature had when it was drafted § 750.145c. The Michigan legislature chose to use the words “arranges for, produce, make, [and] finance” for a reason.166Of course the legislative history does not specifically indicate this proposal; however, logic deems it to be true because all anyone (outside of legislature) can do is base his or her opinion on what was done compared to what could have been done or rather what was not done.167
A judge is not nor should be a legislature, rather he or she is supposed to interpret and apply the law as it is written. When read plainly and in its entirity, § 750.145c criminalizes an individual who “makes” a copy of child sexually abusive material the same as an individual who originally created the same child sexually abusive material.168 § 750.145c(2) has three distinct and separate acts listed within the provision which, if convicted, is a felony and punishable by a maxmium of twenty-years in prison.169
The second listed act states that an individual who “arranges for, produces, makes, or finances” child sexually abusive material is guilty of a felony. Based upon the dictionary definitions, the definition of child sexually abusive material, and the facts of Hill’s case, it is clear that Hill brought into existence a reproduced depiction of child sexually abusive material.170 The majority’s opinion in Hill has created “additional hurdles [for] the prosecution of those who copy child” sexually abusive material.171 Hill may not have been the original creator of the material; however, he created a new image, a new copy, and a CD-R containing those copied images. Therefore, because he created something, he is guilty of “producing” or “making” child sexually abusive material.
- Compare sources cited supra note 158, and sources cited supra note 161 with Va. Code Ann. § 18.2-374.1 (West 2007).
- Compare Va. Code Ann. § 18.2-374.1 (West 2007) with Mich. Comp. Laws Ann. § 750.145c (West Supp. 2004).
- Va. Code Ann. § 18.2-374.1 (West 2007).
- Slavek v. Hinkle, 359 F. Supp. 2d 473, 489 (E.D. Va. 2005).
- § 750.145c.
- Compare discussion and sources cited supra section III. p. 25-26, notes 158-162, with §§ 750.145c(2)-(4).
- See generally § 750.145c.
- See § 750.145c(2).
- See discussion supra Section III.
- People v. Hill (Hill III), 786 N.W.2d 601, 620 (Mich. 2010) (Young, J., dissenting).