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Reply #57: My .02. [View All]

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varkam Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-16-08 01:06 AM
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57. My .02.
Child pornography and sex crimes in general are pretty hot topics right now in criminal law. The first thing that strikes me about this situation is that a crime has been committed. Mere posession of images depicting minors engaged in sexual activity is a crime. The question is, though, who committed the crime? If multiple people had access to the computer, and your wife's computer came back from Restronics with child porn loaded on it, it seems to me that it would be very difficult to prove beyond a reasonable doubt just who exactly placed those pictures there. It wouldn't surprise me that it was accessed after Restronics took possession of the computer, as otherwise they would not of known what it was. It seems to me though that it would've been easy to determine when the images were created on the hard drive.

Nonetheless, if Jim's computer had images on it and it was, in fact, Jim's computer, then it doesn't seem to me that the prosecutor was out of line in charging Jim. A lot of that depends upon how the state statute is written, turning on how "possession" is defined. Some states define possession as "having knowingly obtained" whereas in other states the main factor is one of control - ie is the individual in control of said material. If the state in question depends upon the control issue, and the images were in Jim's computer, then charging him is legitimate. Of course, he has to know that such images are there - but unfortunately that's an issue for trial.

I'm pretty amazed that the case was dismissed on 1st amendment grounds. I'm assuming, then, that these images were cartoons or something similiar, and not pictures of actual children engaged in sexual conduct. You are right about the CPPA; it banned "virtual" child pornography, which SCOTUS found violated the 1st amendment. However certain forms of "virtual" child porngraphy remain illegal, such as the act of "morphing" - taking an image of a real child and pasting it into a pornographic image.

I do think that the prosecutor should of spent a little more time investigating things, especially if the images were cartoons. If that's the case, then I think you've got a clueless prosecutor on your hands.

About child pornography in general: I think that there is a debate to be had about the exact nature of why it is wrong. I'm not defending it, but I don't think that abusing a child and having a picture of said abuse on one's computer are one and the same thing. The law, however, does not seem to make much of a distinction between the two. In most jurisdictions, they are an equivalent (eg Class D felony). In some jurisdictions, such as in Arizona, you can actually get more time behind bars for child porn than for actual abuse. For example, a teacher in Arizona is serving a 200-year sentence for simple possession.

Part of the debate, though, is about pornography in general. Does pornography incite people to commit sex crimes (such as rape)? So far, data doesn't support the conclusion that viewing pornography leads to actual abuse (such as molestation of a child or rape of an adult). There is limited data (from Sweden I believe) to suggest that widespread legalization of pornography led to a decrease in sex crimes. Conversely, there is a recent study to suggest that some 80% of people who view child pornography also abuse children (though that study was withdrawn from publication). IOW, it's a real tangled web, and there's a lot of emotion tied up in such a debate.

As far as the lawyer is concerned: $300 is a reasonable fee that amounts to an hour or two of work.

In any event, that's just my .02. I'm not a lawyer or anything, so take what I have to say with a grain of salt.





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