Attorney Paul Key
Over 20 Years of Experience

YouTube Musician Evan Emory: Prosecution Gone Wild

February 18, 2011

By Paul Key on February 18, 2011 5:29 PM

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In Muskegon County, Michigan, elected prosecutor Tony Tague is pursuing charges of "manufacturing child sexual abusive material" against Evan Emory because Emory edited some footage of himself singing to a group of children to make it appear that he was singing a song with overt sexual lyrics to the children. [Gizmodo] The humor Emory was going for was obvious: It would be totally inappropriate and shocking to actually sing such a song to children. Because he wasn't really, it's funny. Some of the children's parents didn't think so, however, and, presumably, they've put a lot of pressure on their elected official to do something about it.

So far, legal pundits have concentrated on whether the Michigan law might violate Emory's First Amendment free speech rights. I like their thinking, but I'm not even sure if what Emory did even violates the Michigan statute.

Michigan Penal Code section 750.145c provides that "a person who ... make[s] ... any ... child sexually abusive material is guilty of a felony."

"Child sexually abusive material" is defined as any type of recording of a child engaging or appearing to engage in a listed sexual act.

"'Listed sexual act' means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity."

"'Passive sexual involvement' means an act, real or simulated, that exposes another person to or draws another person's attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved."

Emory made a video that depicted children engaging in the act of listening to an adult sing about sexual acts. Michigan Penal Code 750.145c does not appear to criminalize the conduct of an adult verbally communicating to children about specific sexual acts. The only thing that comes close is the "passive sexual involvement," but that could only fit the case here if Emory's singing drew the children's attention to an act of sexual intercourse because of viewing the act of sexual intercourse or because of the children's proximity to the act of sexual intercourse, neither of which applies.

One could imagine that certain parents would be upset by seeing their children in such a video. On the other hand, what's the big deal, seeing that the children didn't actually hear any of what Emory was singing and nobody who saw the video would even think they had, due to the conspicuous disclaimer in the video? Emory has even apologized for what he did. Even if we all agree that what Emory did was inappropriate and that he should suffer some consequences, it does not appear that he broke Michigan Penal Code 750.145c. Assuming no other law has been broken, Tony Tague should have the political courage to tell those parents that are so offended that this matter is not a criminal one and to seek other consequences if they feel it necessary.