SPRINGFIELD, Ill. (CBS) -- In a case that highlights one of the unusual incongruities of state laws, the Illinois Supreme Court ruled Thursday that a downstate man didn't commit a crime when he had sex with his 17-year-old girlfriend, but he did break the law when he took pictures of them in the act.
Marshall Hollins was arrested in downstate Freeport in March 2009, and charged with three counts of child pornography after photographing himself having sex with his 17-year-old girlfriend, but he was not charged with statutory rape, since the age of consent for sex in Illinois is 17. But, in Illinois, it is illegal to photograph anyone under the age of 18 engaged in a sexual act.
After a bench trial later that year, Hollins -- who was 32 at the time -- was convicted and sentenced to 8 years in prison, but he appealed his conviction.
In a 5-2 ruling on Thursday, the high court upheld his conviction and sentence.
Police began investigating Hollins after the girl's mother complained about Hollins having sex with the girl. Hollins was 32 at the time and already a registered sex offender. She also showed police four or five pictures that Hollins had emailed to her daughter, showing them having sex.
Hollins admitted taking the pictures of himself having sex with the girl, using his cell phone, and acknowledged he knew the girl was 17 when they had sex.
Hollins' attorneys argued the state's child pornography statute is unconstitutional, claiming that applying the law to someone old enough to legally consent to sex does nothing to protect them from exploitation or abuse.
But prosecutors argued the child pornography statute was designed to protect children from the psychological and emotional harm that could result from distributing photos of their sexual activity.
Writing for the majority, Justice Rita Garman said the majority of the high court agreed with prosecutors, holding "there are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity."
They further argued that the consequences for sex are more concrete and apparent to teenagers than the dangers of appearing in pornographic photos or videos.
"Memorialization of the sexual act makes permanent an intimate encounter that can then be distributed to third parties. These concerns are exacerbated in the modern digital age, where once a picture or video is uploaded to the Internet, it can never be completely erased or eradicated," the court wrote. "It will always be out there, hanging over the head of the person depicted performing the sexual act."
Hollins had argued the photos were meant to be kept private, but the court noted that there is no guarantee the photos would always remain private.
Two justices – Anne Burke and Charles Freeman – dissented, arguing that, since the sex itself was consensual and legal, the photographs Hollins took were also legal.
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