Sight Crime: The Complexity of Federal Child Pornography & Obscenity Laws

Very informative article By Derek Logue, a must read for people, caught up in in the criminal justice system.

ABSTRACT AND DISCLAIMER

The intent of this article is to provide an overview and assist the reader in understanding the often confusing federal Child Pornography (CP) statutes, focusing primarily on the charge of CP possession. Current Federal guidelines can, at times, consider even fully clothed children as child pornography if the picture is deemed lascivious, age inappropriate, or obscene; however, there are times when even nude pictures of children are not considered CP, such as medical or historical pictures, or other representations of literary or artistic value. So-called “virtual CP” can also lead to obscenity charges under certain circumstances, but not child porn charges because no real minors were used to create the images. A person may be convicted under the harsher “child pornography” statutes, which are registrable offenses, or may be convicted under federal “obscenity” charges, which are not registrable offenses. Current tests for determining whether an image violates federal CP or obscenity laws tend to be vague and demands the juror or judge “think like a pedophile.”

This article is not intended to substitute for legal advice for CP defense. State Statutes may differ vastly from the federal statutes and the arguments used in this article should not be assumed to apply equally to child pornography statutes in your state. The best advice is to check the statutes in your state and consult a specialist in this field to determine if an image you stumble upon is illegal. For your own safety, I advise to follow the mantra, “When in doubt, throw it out.”

Please note: This article focuses of the Federal definitions of child pornography and obscenity; individual states may deviate on the definitions of child pornography and obscenity. Furthermore, some states may count obscenity-related charges as registerable offenses. Please keep that in mind as you read this report.

To read the article CLICK HERE

14 comments for “Sight Crime: The Complexity of Federal Child Pornography & Obscenity Laws

  1. Paul
    December 1, 2015 at 5:52 pm

    Good article by Derek. It goes into the vagaries of these laws and how they are poorly defined AND how the court decisions themselves often contradict one another. Though I don’t condone CP in any way, I don’t think a person under 18 who takes a picture of him or herself should be on the registry, and some of them have to register for life. Another example: The Protect Act’s Prosecutorial And Other Tools Against The Exploitation of Children has once again made virtual CP illegal. While there is no doubt that any civic minded human being should not condone Virtual CP and I certainly don’t condone it, do we really want to criminalize people for their devious thoughts where there is no identifiable victim?

    Derek’s article is certainly useful but I find these two articles below by attorney Troy Stabenow far more enlightening with regards to the sentencing guidelines and how they have gotten completely out of control. Please read both articles and pass them on!

    http://www.lb7.uscourts.gov/documents/INND/110CR40.pdf
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996664

  2. Paul
    December 1, 2015 at 6:08 pm

    Here’s a link that actually works for the second Stabenow article.

    http://floridaactioncommittee.org/pdf/stabenow.pdf

  3. December 13, 2015 at 7:43 am

    Paul, my article isn’t about sentencing guidelines, it is about the definition of child pornography.

    • Paul
      December 13, 2015 at 1:56 pm

      Yes I know that, Derek. What I said wasn’t a criticism. I wanted people to have the additional information from the Stabenow articles if they didn’t have it already.

  4. Kayt
    December 14, 2015 at 11:56 am

    Derek is right, the interpretation of what is child porn is all over the map and is open to interpretation.

    I also agree with Paul, I don’t think we should look at the definition of child porn without considering sentencing because sentencing is also given to interpretation and the sentencing laws vary from state to state.

    My argument is that any interpretation of what is child porn is given to the imagination of other human beings. My opinion of what is sexual would probably be over-reactive and that is a good reason to keep me out of any positon to Judge any sexual situation, particularly if there were a lot of people looking to remove me from my career if I made the wrong decision. That’s why I just tend to not Judge anything. If a person could use their imagination to convict a person of a crime without clear and concrete lines for a decision, it’s pretty much an anything goes situation with both interpretation and sentencing.

    When Judge and jury are told to “Think like a pedophile” we have a seriously dangerous situation because the human brain is a very fertile ground for the seeds of evil things; a place that if given over to imagination can grow to a seriously sinister state of mind. In fact, this is what is happening with the sex offender/registry lawmakers and public hysteria in today’s world.

    • Kayt
      December 14, 2015 at 12:06 pm

      Add to the above: I do not agree with child porn and believe that it is evil and should be stopped but I believe in clear and definite guidelines for convictions and sentencing. I also believe that the public should be educated about them. We also all need to protect ourselves, our homes and our computers to make sure that we don’t get sucked into these types of problems.

    • Paul
      December 14, 2015 at 3:36 pm

      Federally the laws don’t vary at all, Kayt. In a non-literal sense, they only vary to the extent that the philosophy of each US Attorney’s office might vary from district to district. Judges can only sentence based on what the AUSA’s agree the charges should be. Some districts will NEVER drop receipt, no matter how mitigating the factors are…thus ensuring a mandatory prison sentence. Other districts will only drop it down to possession with strong mitigation circumstances. But state guidelines vary widely. In some states, the guidelines are more punitive than the federal guidelines. It doesn’t take much to get a sentence of over two centuries in certain states.

      And yes, Kayt, I also believe the discussion is incomplete without referring to the outrageous sentencing guidelines. Though I think everything Derek said in his article was spot-on, well researched and insightful with regards to how we define CP and how that can be problematic for individuals who clearly don’t deserve this conviction.

      • Paul
        December 15, 2015 at 1:23 pm

        By the way (rhetorical question) but who can tell me the difference between possession and receipt? Is it not logical to assume that one can possess something that they did not receive, unless they produced it, true enough? Well, here’s the BS technical distinction: Receipt is purposeful, meaning that one intended to view the material. It is possible someone could accidently “possess” the material without the intent to view if it was downloaded unknowingly or by accident. And yes, that can happen but usually if it is a relatively small number of images, the feds will hand the case over to the state. So accidental receipt is possession. But for all practical purposes, receipt and possession in the federal system are one and the same even though they’ll never admit it. Receipt is simply a bargaining chip for prosecutors to be able to use. It’s a rose by any other name except one charge assures mandatory prison while the other does not, and they are the exact same crime. Does that seem fair? It’s nice when one side holds all the chips.

        If anyone else has any thoughts on this, please share. This is an important topic so I hope the writers at SOSEN will decide to write an article about this or Derek of Once Fallen could share his insight, as well.

  5. Scott
    December 14, 2015 at 7:17 pm

    Beware to all viewers. illegal websites that enable this type of behavior could actually be taken over or intercepted by under cover agents.

  6. ExpatRFSO
    December 16, 2015 at 10:45 am

    That was long. I couldn’t read it all, but read much of it, scanned the rest. Some very interesting bits.

    One of the things I really wished I knew back when I caught my case was that federally there are, or were, two common sections one can be prosecuted for. There is possession and there is receipt and possession. Receipt and possession has a greater penalty thus prosecutors always try to use it. It becomes especially important later with the registry because since the states manage the registries, they have to determine whether registration is required, and if so to what tier you belong which will have implications on whether you have residency restrictions, go on the internet, and for how long you must register. The states do this by comparing which of their state laws most closely resemble the federal laws then applying the registration standards assigned to the state law. This process has undergone some revisions over the years so I am not sure how true that is today.

    I recall one guy in my group therapy molested his daughter for several years starting at like age 4. He was charged by the state and got like 4 months in jail. I, having LOOKED AT PICTURES of it, got nearly 2 years in federal prison. Today I would have gotten 5x that. This is not right for a non-touch crime which has become very common. Legislatures are responding to the 5000% explosion of CP cases since the internet.

    It was only about 15 years ago that CP possession in my state was a misdemeanor with no registration. You were unlikely to get any time for a 1st offense. Now people are getting 10 years in prison or more for a first offense. It’s interesting how many jurisdictions around the world have chosen not to outlaw CP at all, many only recently caving to western pressure. In many countries it is still not a crime, unless you are a US citizen.

    • Paul
      December 17, 2015 at 12:33 pm

      Actually I think it should be a crime, EXPATRFSO. The question is; are the sentencing guidelines proportionate to the crime? Clearly the answer is no.

  7. Charles the Polymath
    December 17, 2015 at 8:20 am

    [Please note that this comment is not related to the above article. This comment concerns the recent US Supreme Court decision in Hall v. North Carolina in which the court denied Hall’s Petition for Writ of Certiorari. Hall had raised, among other things, a very good Ex Post Facto argument in his Petition but the Court saw fit to not even hear the case. And I don’t see where the three justices that dissented in the Smith case had any opposition to this denial. So are we to assume that these three justices who dissented in Smith have been gotten to on the constitutionality of SO registration/registry laws? I don’t know. But I do know this, and I have been saying this for 3 or 4 years now that it did not matter if someone brought this type of argument before the Court that they were going to uphold the Smith decision come hell or high water! Chief Justice Roberts argued this case before a Rehnquist lead court and won. After which, when the opportunity presented itself, King George (Bush) II appointed Roberts head honcho, the big tuna, HNIC! Therefore, does anybody realistically believe that he will allow his baby (Smith) to be killed off? Two word answer—Hell No! Something else is a foot with SO laws, something evil, something malevolent. The public is being primed for something, I have an idea what it is but I won’t say without proof. But I ask that you try and look behind the curtain, and through the smoke screen.

  8. Scott
    December 24, 2015 at 1:41 pm

    Have a Merry Christmas everyone.

Comments are closed.