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A 37-Year-Old Filmed His Legal Sex Acts With A 16-Year-Old And Sent Her The Videos. A Court Said He Distributed Child Porn.

Matthew Rouse pleaded guilty to distributing child pornography and was sentenced to eight years in prison. An appellate court recently upheld his conviction.

Posted on September 3, 2019, at 6:04 p.m. ET

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A man who was 37 when he filmed himself having legal and consensual sex with a 16-year-old girl in Nebraska — then shared the videos with her — is guilty of distributing child pornography, a federal appeals court ruled Tuesday.

Last year, Matthew Rouse, a former sergeant with the Nebraska Army National Guard, pleaded guilty to a federal charge of distributing child pornography and was sentenced to eight years in prison.

Rouse, now 39, later appealed to the US District Court in Nebraska to dismiss his indictment. He argued that prosecuting him for having consensual sex with a 16-year-old, which is legal in Nebraska, and for recording and sharing the videos only with her, violated his constitutional rights to free speech and sexual privacy.

The district court denied his motion, saying that child pornography was “categorically excluded” from protection under the First Amendment. On Tuesday, the 8th Circuit Court of Appeals agreed with the district court and upheld Rouse’s conviction.

The court said “the production and distribution of video recordings of a 16-year-old girl engaged in sexual explicit conduct” was illegal, “even if the sexual activity is legal in the State of Nebraska.” The age of consent in Nebraska is 16.

The decision by the federal appeals court echoed a similar opinion from Maryland’s highest court, which ruled last week that a 16-year-old girl was considered a child pornographer for texting her friends a video of herself engaging in a consensual sex act. In that case, the court ruled that self-produced child pornography or consensual sex acts by a minor were not exempted from the state’s criminal statute.

Rouse was a 37-year-old sergeant in the Army National Guard in Lincoln when he started having sex with the 16-year-old high school student from Omaha, whom he met while he was recruiting for a CrossFit competition, according to court documents. The two met multiple times in Omaha to have sex from September 2016 to January 2017, the federal indictment said.

During the relationship, Rouse suggested that they record their sexual activity and the girl agreed. Both used their cellphones to do so, and he shared the videos only with her over the internet, court documents said.

The girl also sent Rouse explicit photos she took of herself. The girl’s mother notified Rouse’s employer after she found out about their relationship and discovered the videos on her daughter’s phone.

After Nebraska State Patrol began investigating Rouse, he was arrested in Lincoln in February 2017. Although Rouse’s sexual activity with the teen did not violate Nebraska law, the state charged him with possessing child pornography. Rouse was involuntarily discharged from the Nebraska National Guard in the fall of 2017, a spokesperson told BuzzFeed News on Tuesday.

Rouse was later indicted in federal court. He pleaded guilty to one count of distribution of child pornography and was sentenced to eight years in prison in June 2018.

In his appeal to dismiss his indictment, Rouse argued that the videos he made and shared of engaging in legal sexual activity with the teen were “protected speech” under the First Amendment.

Rouse said that no crime or sexual abuse had occurred because the teen had reached the age of consent in Nebraska and she had consented to have sex with him.

He argued that his recordings of their sexual acts were protected speech “because there is no underlying criminal conduct that makes the videos categorically unprotected.”

However, the 8th Circuit Court of Appeals ruled that “the creation of the speech is itself the crime of child abuse.”

“It may not be illegal for an adult to place an unclothed child on a bed, but when the adult produces and distributes images of the child that contain a lascivious exhibition of the child’s genitals, the activity is illegal and outside the protection of the First Amendment,” the court said.

The court said that Rouse had recorded “an identifiable minor engaging in sexual activity” and had distributed the video over the internet.

Despite the fact that Rouse had only shared the videos with the teen herself, the court said that he was unlawfully distributing child pornography, which was not protected by the First Amendment.

Rouse’s lead public defender was traveling and could not return BuzzFeed News’ request for comment.

Rouse also contended that he had a right to engage in lawful sexual conduct with a minor and record it on video for personal use under his Fifth Amendment right to privacy or sexual intimacy.

The court disagreed, saying that Rouse’s right to liberty did not prevent him from being prosecuted for transmitting “a visual depiction of a minor engaged in sexually explicit conduct, even though the conduct was not criminal.”

However, one of the three circuit judges wrote a separate opinion stating that while he agreed with the court’s opinion, he believed that Rouse’s conviction and his eight-year sentence was “unseemly and quite possibly unfair.”

Judge Clarence Arlen Beam wrote that “there was in reality no victim of this crime.”

He suggested that a legislative body should address the two-year gap between the age of consent for consensual sex and the age at which depictions of legal sex are considered illegal as child pornography.

Beam also wrote that Rouse’s eight-year prison sentence was “excessive” and was the result of what he believed to be “artificially and unnecessarily high child pornography sentencing guidelines.”

“In this unusual and likely aberrant case, a prison sentence of eight years is, to say the least, unfortunate,” Beam said.

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