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Rita Renter works at Flickers Video Store, a relatively small operation owned and operated by Frank Flicker. As Assistant Manager, she runs the store when Frank isn’t around and has some responsibility for ordering and stocking new videos and games. Rita is an avid movie-goer herself and is very knowledgeable about films and their contents. The store is in a nice neighborhood and has traditionally been a family video store, carrying a wide variety of movies and games. Until very recently, it did not carry "adult" videos, but last month Frank decided to quietly expand into that area. Rita strenuously objected to the addition of adult videos and argued several times with Frank about the change in policy. In response to her complaints, Frank reminded her that they were facing stiff competition from the larger video stores, and in his final statement on the matter, he added, "It’s not like we’re selling child porn." Rita was still disturbed about the whole concept.
As part of the process of adding an "adult video" section to the store, Frank had his attorney prepare a policy manual explaining what could be sold and to whom. The manual was kept in a drawer by the cash register so it could be used for reference. He also had a training session for the staff. The store had always rented R-rated movies which might contain violence, adult language or sexual activity falling short of "sexually explicit conduct" as defined by statute. They did not rent R-rated videos to those under 18, and Frank had them bar-coded to alert the cashier to the need for an ID check. When they started renting videos that contained what was considered under state statutes as "sexually explicit conduct," to avoid renting these to the wrong people (minors, defined by statute for this purpose as those under 21), he had all such videos bar-coded as well to alert the cashier that ID was necessary. The policy manual explained the regulations concerning what kinds of videos could be sold to what age persons. The rules were somewhat confusing and Rita considered this another reason that having an "adult" section was a bad idea.
One day last week, while Rita was watching the store, a package delivery service arrived and delivered a package addressed to Frank Flicker containing fifteen videos. Rita took the delivery, and as was her custom, she opened the package in order to log the videos and enter them in the computer. As she was doing this, she thought to herself how curious this delivery appeared. First, she hadn’t remembered an order for these tapes. In addition, the videos appeared not to be from a major label. As she looked at the covers, she remarked to herself that they appeared quite risque’. This reinforced her belief that the "adult" section was a bad idea, but she went ahead and bar-coded the videos as "sexually-explicit," knowing that Frank would just give her a hard time if she raised the issue again. Before she could finish, the store got busy and she put the shipment aside.
Later that day, during one of the few slow periods, Rita returned to the new shipment to finish processing it. She was taken by the cover of one of the videos, which showed what looked to her like a young teenager in a very provocative pose. The name of the tape was "Bad Boys." The writing on the back indicated that the tape showed actual and simulated sexual acts. Rita decided she’d better not put that one out until she previewed it or showed it to Frank and made sure these acts did not involve young teenagers. As she looked through the other boxes, she noticed several other tapes in the shipment also appeared to have young people on the covers dressed or posing in sexually provocative ways. She knew it was illegal to sell or rent videos showing sexual conduct by people under 18, so she thought these were probably just "teasers," but she decided she’d better show them to Frank before putting them in stock. She left them on the side counter to show to Frank when he came in.
Shortly thereafter, the store got very busy. Unfortunately, both Frank and the night clerk called in sick and Rita was working by herself. Several customers came in at once, and of course, they all wanted to check out at the same time. The first person in line was Alex Allen. He was renting three movies. When scanned, one of the movies flashed in the computer as "sexually explicit" and another as "R." Rita asked for ID and Alan gave her his license which showed he was 25. Rita completed the transaction and rented him the movies. The next in line was Bobbie Bailey, who looked about 12 and was in fact that age. He had his mother’s rental card and wanted to rent a PG-13 movie. Store policy required that he have permission from a parent in the computer to rent such a movie. Rita checked and determined he had permission, so she rented the movie to him. Meanwhile, the others in line were getting restless.
The third person in line was Carla Cook. She was renting two movies. She seemed very impatient and told Rita she was in a hurry. She complained that there was only one clerk and asked if she could hurry things along. As Rita scanned the movies, one came up on the computer as "sexually explicit," so Rita asked for ID. Carla fumbled around her purse and handed Rita a license showing she was 19. Rita hesitated for a moment, trying to remember what age was necessary for "sexually explicit". She thought, "OK, 18 is OK, she’s 19, so that’s OK, right." She hesitated for a minute, thinking maybe it isn’t 18, and thought maybe she should check the manual when Carla interrupted her train of thought, insisting that Rita hurry up. Those behind Carla also seemed to be getting more impatient. Rita hesitated one more second, concluded the relevant age was 18, and finished processing the rental. Carla then left the store.
While Rita was dealing with Bobbie and Carla, the fourth customer, Dave Drew, a middle-aged man, was leaning against the side counter. While waiting, he was looking at the tapes in the new shipment that Rita had put aside for Frank to take a look at. When he arrived at the counter, he had two tapes he had selected from the adult section of the store. He told Rita he wanted to rent "Bad Boys" as well. Rita told him that that tape wasn’t available for rental, and Dave went ballistic. He started yelling that this happens all the time. Whenever he wants anything popular, he’s told he can’t have it because it isn’t checked in yet, or some other excuse. He was getting loud and insistent, and others in line were both getting impatient and appearing to agree with Dave. Although Rita had concerns about the tape, she decided it wasn’t worth making more of an issue over, so she rented the tape to Dave. She then finished handling the rest of the customers and thereafter had a relatively uneventful night - that is, until the police arrived.
It appears that Rita’s fears about the shipment were warranted. In fact, the videos did contain "child porn" - real and simulated sexual intercourse and deviant sexual intercourse involving children as young as 12. As Rita knew, the conduct on the tapes constituted sexual activity as defined by the referenced statutes. When Dave got the tape home and started viewing it with his wife, they became very upset at its contents and called police. The police confiscated the tape and asked where they had rented it. Upon discovering they rented it from Rita, they came to the store and arrested her. In looking through the rental records for that night, they also noted that she had rented a video showing sexually explicit conduct to a minor, since for these purposes the laws define a minor as someone under 21, and Carla was only 19.
Unfortunately for Rita, it appears that Frank is secretly a pedophile and the shipment of child porn was for his private collection. He had expected to take delivery personally, and he never expected anyone else would see the videos. He is also in trouble, since possession of or attempting to possess child porn is itself a crime.
Discuss the potential criminal liability of Rita Renter under the following statutes only.
ARKANSA, a Common Law jurisdiction:
Ark. G.L. § 781.400
Whoever knowingly displays, sells, rents or otherwise distributes any videotape, CD-Rom or computer disk depicting sexual activity, as defined in section 781.100, between, among or involving any person under the age of 18 shall be guilty of a Class D felony.
Ark. G.L. § 781.600
Whoever sells, rents or otherwise distributes any videotape, CD-Rom or computer disk containing sexually explicit conduct to a minor shall be guilty of a Class D misdemeanor.
MOKANS, a Model Penal Code jurisdiction:
Mok. G.L. § 577.300
Whoever knowingly displays any videotape, CD-Rom or computer disk depicting sexual activity, as defined in section 577.100, between, among or involving any person under the age of 18; or sells, rents or otherwise distributes such tape, CD-Rom or disk, shall be guilty of a Class D felony.
Mok. G.L. § 577.550
Whoever sells, rents or otherwise distributes any videotape, CD-Rom or computer disk containing sexually explicit conduct to a minor shall be guilty of a Class D misdemeanor.
Note: The constitutionality of these statutes is not disputed.
There is no allegation that Rita ever displayed the video.