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Natalie Clark v. Nick Roccanova

February 14, 2011



This matter is before the court on the motions of the defendants, Nick Roccanova, Michael Rudy and Jack Lynch, to dismiss this action (R. 11, 12, and 13), and on Rudy's motion to strike (R. 13). For the following reasons, Roccanova and Rudy's motions to dismiss will be denied; Lynch's motion to dismiss will be denied in part and granted in part; and Rudy's motion to strike will be denied.

I. Background*fn1

The instant lawsuit arises out of a civil claim under Chapter 110 of Title 18 of the United States Code regarding the sexual exploitation of a minor child. In 2006, Roccanova, Rudy and Lynch coerced, enticed and persuaded Clark to produce a sexually explicit video, in violation of 18 U.S.C. § 2251. That same year, all three defendants transmitted the video in interstate commerce on the internet, in violation of 18 U.S.C. § 2252.All parties were 14 years old at the time of these actions. Prior to filing an answer to Clark's complaint, all three defendants have filed motions to dismissand Rudy has filed a motion to strike.

II. Legal Analysis

A. Application of the Law to Children

The defendants are covered by the law, even if they are not adults. Nothing in the plain language of the statutes or their legislative history indicates that Congress intended 18 U.S.C. § 2251 and § 2252 to apply only to the conduct of adults. Both statutes prohibit creation, possession and transmission of child pornography by any "person." While "person" is not defined in 18 U.S.C. §2256, the statute's definition of "identifiable minor" begins by stating that a minor is a "person." 18 U.S.C. § 2256(9)(A). This indicates that "person" is meant to refer to an individual of any age, not just an adult. Neither statute at issue contains language which would narrow the definition of "person" to mean only adults.

Additionally, there is nothing in the legislative history which would indicate Congress intended "person" to mean an adult. 18 U.S.C. § 2251 and § 2252 were first enacted as part of the Protection of Children Against Sexual Exploitation Act of 1997, Pub. L. No. 95-225, 92 Stat. 7 (1978). In all legislative records regarding the statutes at issue, Congress refers only to "persons" and does not narrow the term to adults.

Rather, the legislative history of the Act states that the "Committee on Human Resources has a deep and abiding concern for the health and welfare of the children and the youth of America," and therefore "condemns such base and sordid activities which may permanently traumatize and warp the minds of the children involved." S. Rep. No. 95-438, at 3-4 (1977) (emphasis added). Encounters which produce child pornography "cannot help but have a deep psychological, humiliating impact on these youngsters and jeopardize the possibility of healthy, affectionate relationships in the future." Id. at 6. Nothing in the record indicates that a child would be less traumatized if that pornography is created or transmitted by a child rather than an adult. Lynch argues that the phrase "use of a minor" in the definition of "child pornography" demonstrates that Congress intended to target adults. R. 11 at 6 (quoting 18 U.S.C. §2256). However, nothing in the phrase, the rest of the definition or the congressional record indicates that only an adult can "use" a minor.

Child pornography has no First Amendment protection because of its negative impact on the child involved, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), even if it depicts a work of value. New York v. Ferber, 458 U.S. 747 (1982). Child pornography is limited to depictions of actual children, because protection of children is the purpose of the legislation. Ashcroft, 535 U.S. at 250. Nothing in the jurisprudence indicates that such harm could be done only by adult perpetrators..

It is not surprising that no federal precedent exists for a suit against a minor under these statutes, given the relatively recent rapid emergence of "sexting" by minors. However, prosecutors have begun to charge minors under child pornography statutes. See Sarah Wastler, The Harm in "Sexting"?: Analyzing the Constitutionality of Child Pornography Statutes that Prohibit the Voluntary Production, Possession, and Dissemination of Sexually Explicit Images by Teenagers, 33 Harv. J.L. & Gender 687 (2010).

Thus, based on the plain language of the statues, legislative history and case law, Clark has a claim under the statutes, and the court will deny the defendants' motion to dismiss on this basis.

B. Deficiency in the Pleadings

The court finds unpersuasive the defendants' argument that Clark's complaint is deficient under Rule 8(a)(2), which requires only that a pleading contain "a short and plain statement of the claims showing that the pleader is entitled to relief." The court is required to "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." In re Travel Agent Com'n Antitrust Litigation, 583 F.3d 896 (6th Cir. 2009) (quoting Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir.2008)). The pleading standard under Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Howard v. City of Girard, Ohio, 346 Fed.Appx.49, 50 (6th Cir. 2009). In order to survive a motion to dismiss, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. V. Twombly, 550 ...

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