Todd Senters, 31, a former Omaha Beef football player and physical education teacher at Northwest High School, admitted to the taping and was sentenced to probation and required to register as a sex offender two years ago.
According to James Martin Davis, Senters’ attorney, the law was misapplied when it came to his client because the legal age of consent in Nebraska is 16.
“This law is intended to protect those children who were not yet old enough to form a rational basis for consensual sex, and to protect the public at large from the distribution of such materials,” stated Davis in briefs filed with the court.
“It was never designed to provide a bases for invading the privacy of the bedroom in order to effectuate the prosecution of two legally consenting young people who decide to photograph their encounter for purely private purposes,” Davis wrote.
Davis also takes issue with certain aspects of Senters’ sentence, including the ruling by trial court judge John Hartigan that Senters was not allowed to have contact with the now-18-year-old girl in the video for the duration of his probation.
Solicitor General J. Kirk Brown believes that the Nebraska legislature did intend to create a two-tiered system in regards to child pornography.
“Senters attempts to confuse his act of copulation with his 17-year-old partner with videotaping that same behavior,” said Brown. “Those two acts are legally distinct.”
“The Legislature […] clearly has not condoned the possession of videotapes of such activity,” Brown said.
Having a “crazy quilt” of laws regarding when a person is or is not a minor is not only confusing, according to Davis, but it also “leads to unfair, unjust and bizarre results.”
Davis likens his client’s situation to a 2003 U.S. Supreme Court case that struck down a Texas law that banned oral and anal sex between two men, but not between a man and a woman.
“The law and logic of that case are equally applicable here,” Davis said. “Here, the state, by invading the defendant’s bedroom, has in fact regulated and punished legal, consensual, private and intimate sexual encounters and the private videotaping of those encounters. While the state permits the underlying sexual act in this case, it criminalizes certain aspects of that sexual experiences."
