Ralph Martell, an amateur photographer, songwriter and author of books on gardening and travel, was sentenced on May 30 to three years in prison after pleading guilty to one count of violating a law very familiar to adult industry members: 18 U.S.C. Sec. 2257, the recordkeeping and labeling law. But unlike the story reported elsewhere, Martell was never charged with that offense.
"Ralph was originally charged with violating 18 U.S.C. 2251, production, with a mandatory minimum of 15 years – and this for a 78-year-old man," said Martell's attorney, Edward Z. Menkin.
That crime, officially "Sexual Exploitation of Children," targets "[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct."
Of the hundreds of photos Martell had taken since he began advertising for models in 2002, five of the girls were indeed underage, at least one as young as 13. And although newspaper reports of the charges have been unclear, variously describing the photos as "nude" and "sexually explicit," Menkin confirmed that the photos did depict the minors engaging in "actual sexually explicit conduct," the standard for a 2257 violation.
"They [Justice Department prosecutors] then proposed a plea to a violation of Sec. 2252, possession, which would have been a mandatory minimum of five years," Menkin continued. "That was unacceptable to us. So we negotiated a plea bargain, and obtained a plea agreement where both sides agreed that the violation was 2257. It's very technical; he did violate that, but only in the most technical sense. He did obtain [model] releases, and they were in a professional format. What he did not do is obtain actual Traci Lords proof."
In other words, Martell never checked his models' IDs, and worse, didn't keep copies of them – although, as was the case with Traci Lords' early career, if Martell's underage models had presented what appeared to be valid driver's licenses showing that they were over 18 – as Lords did – he would have passed the 2257 hurdle, but that might then have resulted in a longer sentence under another code section.
So Martell's "conviction" under 18 U.S.C. Sec. 2257 therefore belongs in the same category as the Justice Department's recent claim of having gotten dozens of federal obscenity convictions. Those defendants were also originally charged with another crime – in their case, possession of child pornography – but they too were allowed to plead to a "lesser offense": obscenity.
But don't worry: Plenty of actual busts under 2257 may be just around the corner.
On second thought: Worry.
