In the first federal appeals court opinion on the subject of sexting, Miller v. Mitchell (United States Court of Appeals, Third Circuit No. 09-2144), a three judge panel of the Third Circuit has ruled that the children cannot be prosecuted for child pornography for photographs found on classmates cellphones. However, the court declined to address the elephant in the room, the First Amendment Right to Free Speech. Thus the question about whether obscene photos sent by juveniles are protected by the First Amendment has not been decided.
Their decision carefully avoids suggesting that distributing photographs of children is something that is protected by the First Amendment, while also carefully avoiding the suggestion that children under the age of 18 do not have the right to transmit these types of photographs or messages.
This case may put the issue of sexting among teenagers to rest for a while. However, it is only a matter of time before the issue of sexting arises again, and sooner or later the courts will have to consider whether or not this type of communication falls under the protection of the First Amendment.
Showing posts with label Child Pornography. Show all posts
Showing posts with label Child Pornography. Show all posts
Thursday, March 25, 2010
Tuesday, March 2, 2010
Goin' to the dawgs
Defense lawyers are waiting for the highly anticipated decision in United States v. Stevens (docket #: 08-769).
On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about "crush videos," which feature women in high stilettos crushing small animals to death.
Federal prosecutors in Pennsylvania charged Robert Stevens, a pit bull afficionado, under federal law for three videos showing animals subjected to violence. They are likening the videos to child pornography, arguing that they have no social value that would justify constitutional protection. After a jury trial, Stevens was convicted, but the Third Circuit US Court of Appeals overturned that conviction.
At oral argument, Chief Justice John Roberts asked Neal Katyal, the Principal Deputy Solicitor General, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”
Katyal gave an unsatisfactory response after which Roberts answered his own question by quoting from New York v. Ferber, 458 U.S. 747 (1982) saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”
It is possible that the Court will create another unprotected category of expression if it believes that the ill effects of the "speech" far outweigh the ill effects of the First Amendment interest. Stevens argues that his videos are about the "virtues" of pit bulls, arguing that they cannot be classified as "evil". His argument centers on the educational value of a dog fighting documentary.
Throughout the land there are laws that punish animal cruelty without punishing depictions of it. The third Circuit found that the government's interest in depicting animal cruelty does not rise to the same level as eradicating child pornography. Civil libertarians are worried about going down a slippery slope when you create another unprotected category. They argue that courts will begin to criminalize all sorts of violent expression, thereby endorsing the "violence as obscenity" concept.
On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about "crush videos," which feature women in high stilettos crushing small animals to death.
Federal prosecutors in Pennsylvania charged Robert Stevens, a pit bull afficionado, under federal law for three videos showing animals subjected to violence. They are likening the videos to child pornography, arguing that they have no social value that would justify constitutional protection. After a jury trial, Stevens was convicted, but the Third Circuit US Court of Appeals overturned that conviction.
At oral argument, Chief Justice John Roberts asked Neal Katyal, the Principal Deputy Solicitor General, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”
Katyal gave an unsatisfactory response after which Roberts answered his own question by quoting from New York v. Ferber, 458 U.S. 747 (1982) saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”
It is possible that the Court will create another unprotected category of expression if it believes that the ill effects of the "speech" far outweigh the ill effects of the First Amendment interest. Stevens argues that his videos are about the "virtues" of pit bulls, arguing that they cannot be classified as "evil". His argument centers on the educational value of a dog fighting documentary.
Throughout the land there are laws that punish animal cruelty without punishing depictions of it. The third Circuit found that the government's interest in depicting animal cruelty does not rise to the same level as eradicating child pornography. Civil libertarians are worried about going down a slippery slope when you create another unprotected category. They argue that courts will begin to criminalize all sorts of violent expression, thereby endorsing the "violence as obscenity" concept.
Wednesday, February 24, 2010
The Ambulance chaser's new practice!
Several enterprising lawyers have come up with a new scheme to make money from the "victims" in child pornography cases. James R. Marsh calls his new practice of suing people convicted of possessing child pornography "a lawyer's dream". These lawyers are demanding that everyone convicted of possessing even a single image of their client be responsible for the total damages, which runs as high as 3.4 million dollars in some cases. These questionable awards posing as "restitution" are spreading to all federal jurisdictions. These civil lawyers are claiming that every time an image is viewed, the child is victimized anew.
Mr. Marsh has requested that the federal government notify him every time any of his clients' pictures turn up in a child pornography prosecution. The Crime Victim's Rights Act of 2005 (Also known as the "Masha's Law" section of the Adam Walsh Child Protection Act) has a built in notification system. Mr. Marsh then intervenes in any federal prosecution and demands restitution. He sometimes appears at sentencing and presents a victim impact statement. He routinely has economists develop a tally of damages which includes counselling, diminished wages, potential mental health problems, and (of course) lawyers' fees. Mr. Marsh argues that each defendant is jointly and severally liable for all damages.
Mr. Marsh has automated the process and e-mails his client's filings to the United States Attorneys in 350 cases. He said, "I'm able to leverage the power of the Internet to get restitution for a victim of the Internet." Mr. Marsh has in effect expanded his small New York Law firm by deputizing thousands of federal prosecutors. He has received several "restitution" awards in excess of $100,000.
The reaction from the federal bench is mixed with some judges refusing to award restitution saying that the link between possession and the harm done is too tenuous to reach the level of "proximate harm" generally required under the law of restitution.
In addition to federal law, both Florida and Missouri are in the process of passing legislation that would entitle victims of child pornography to sue their offenders for $150,000 per image for possessing or distributing these images.
Mr. Marsh has requested that the federal government notify him every time any of his clients' pictures turn up in a child pornography prosecution. The Crime Victim's Rights Act of 2005 (Also known as the "Masha's Law" section of the Adam Walsh Child Protection Act) has a built in notification system. Mr. Marsh then intervenes in any federal prosecution and demands restitution. He sometimes appears at sentencing and presents a victim impact statement. He routinely has economists develop a tally of damages which includes counselling, diminished wages, potential mental health problems, and (of course) lawyers' fees. Mr. Marsh argues that each defendant is jointly and severally liable for all damages.
Mr. Marsh has automated the process and e-mails his client's filings to the United States Attorneys in 350 cases. He said, "I'm able to leverage the power of the Internet to get restitution for a victim of the Internet." Mr. Marsh has in effect expanded his small New York Law firm by deputizing thousands of federal prosecutors. He has received several "restitution" awards in excess of $100,000.
The reaction from the federal bench is mixed with some judges refusing to award restitution saying that the link between possession and the harm done is too tenuous to reach the level of "proximate harm" generally required under the law of restitution.
In addition to federal law, both Florida and Missouri are in the process of passing legislation that would entitle victims of child pornography to sue their offenders for $150,000 per image for possessing or distributing these images.
Friday, January 22, 2010
Child Sex Offender Sentencing Strategies
Some cases are unwinnable. It is our job to prepare for mitigation at sentencing.
In the last decade, there has been much media focus on the problems of internet child exploitation, online sexual predators, and child pornography. There is increasing public anger surrounding these hot-button issues. The media coverage has been sensational and inflammatory. Everyone is familiar with the NBC Dateline: TO CATCH A PREDATOR series.
There is increasingly a 'lock em up and throw away the key" mentality among the general public. Pennsylvania and Federal Statutes have mandatory minimum penalties for some of these crimes. Many of the individuals convicted of these crimes have sexual addictions and/or severe psychological diseases. All of these individuals can be rehabilitated.
From 1994-2007, the mean sentence for Federal child pornography cases rose from 3 years to almost 10 years. The Federal sentencing guidelines are off the charts. They are a legislative response to the public outcry. To quote PA Rep.Greg Vitali, "legislators by and large tend to vote for things based on how the issue can be reduced to a sound bite and used against them." Keep in mind that possession of child pornography is a non-contact sexual offense. The prosecution argues that without the market for these images, there would not be the abuse of children necessary to produce these images. Additionally, prosecutors routinely argue that there is an ongoing harm inflicted upon the child victim by each additional viewing of the image of child pornography. Their contention is rooted in the unproven fear that viewing these images is the first step to committing a contact sexual offense.
In many cases, prosecutors cite a flawed study entitled "The 'Butner Study' Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders" (The Butner Study") to support their assertions. In fact, there are two versions of this study, the published version and the unpublished version. Federal Courts have routinely dismantled both, calling them "fundamentally flawed in design" The study has been criticized because it is co-authored by a US Marshall, among other things, There are several other studies floating around, all of them based upon prison populations. Most of the criticism of these studies focuses on the fact that the sample from which most of this data originates is inherently biased.
The challenge for the defense lawyer in these cases is to rebut this empirical data and to distinguish the client's individual circumstances. Our job at sentencing is to mitigate by putting forth relevant mental health information and the testimony of mental health professionals to persuade the court that the client is not prone to a repeat offense. Many of these offenders are compulsively addicted to online pornography. We routinely have our clients examined by mental health professionals. There are a number of programs available in the Southeastern Pennsylvania Region for people with Sexual addictions. We have been successful in obtaining federal sentences outside the guideline range by arguing a dramatic level of acceptance of responsibility and proving that there is a low risk of recidivism..
Our job is to persuade the court of the unusually high likelihood of rehabilitation because of the mental health support network assisting our client. These professionals are able to accurately evaluate impulse control, psychopathy, motivation and capacity to respond to appropriate treatment. It is our job to weave these evaluations into our argument against the likelihood for recidivism. From a legal perspective, the goal of psychosexual evaluations is to assist participants in the legal system (among others: the court, prosecutor, and presentence investigator) to understand who is most likely to respond to treatment as opposed to incarceration, monitoring, or some combination thereof.
These evaluations include a discussion of the offender's psychological, physical, and sexual trauma history, which is often present in these individuals.
Most experts divide child sexual offenders into three categories:
The first type of offender is known as the violent offender. Studies indicate that violent child sexual offenders make up less than 5% of child sexual offenders. They have been proven to engage in hostile acts toward children such as child rape, bizarre ritualistic sexual behavior, and murder. This type of offender is what the public routinely thinks about when they think of any child sexual offender. These "snatch and grab" offenses fuel the public hysteria.. Most experts in the criminal justice system correctly agree that this type of offender requires long term, if not permanent, incarceration. Obviously these cases are next to impossible to mitigate. The prognosis for any type of rehabilitation is questionable.
The Second type of offender are routinely labelled "regressed" or "situational" child sexual offenders. This category represents almost 80% of all child sexual offenders. They are most likely to end up in a court of law and also the most likely to benefit from sex offender treatment. Many situational/regressed types harbor an enduring sexual orientation and social interest toward a certain age group. According to experts in the field, this individual may enjoy a successful career and family life, most often not offending until presented with specific life stressors or situations. Often married or in a stable relationship, the situational offender's sexual interest in children is often temporary or opportunistic. The regressed sexual offender's behavior is episodic, tending to flare up when exposed to emotional stressors (such as job loss, financial stress, or other losses). In some cases, it is prompted by internet pornography and sometimes even strip clubs.
It is not unusual for a regressed/situational offender to view child pornography, but not to engage in sexual contact with a minor unless disinhibited by drug or alcohol use or under psychological stress. Alcohol abuse and drug dependency are often identified as precipitating factors for this type of sexual behavior. Depending on the individual, this type of offender can respond well to behavioral and cognitive therapies. With appropriate intervention, treatment, and long term monitoring, such an offender is less likely to re-offend.
The third type of child sexual offender is the "fixated" or "dedicated" type. Approximately 10-15 percent of all child sexual offenders are of the "dedicated" or "fixated" type. This offender is termed a pedophile if he/she is primarily or solely aroused by pre-pubescent children. An offender who is aroused by post-pubescent children is called an ephehbophile. They have little interest in sex with adults or find adults not to be sexually arousing, thus the terms "fixated" or "dedicated" since their sole sexual interest lies in pre- and/or post- pubescent children. "Fixated" or "dedicated" sexual offenders seek access to children not only because of a sexual interest in children, but also because of greater social and emotional comfort with children as opposed to adults.
These fixated offenders remain difficult to treat and have a high rate of recidivism. There are many programs to reduce hormones and other medications crudely called "chemical castration" which can be utilized to lower the sexual drive and desire. Behavioral avoidance therapy can be helpful on a case by case basis. With proper treatment, the fixated offender has been shown to be able to learn ways to avoid child sexual contact and arousal. The studies are pessimistic concerning the likelihood of the offender to develop interest in adult-oriented sexual patterns. Most sentences for this type of offender require substantial incarceration, registration, and long term monitoring of behavioral appropriateness.
There has been much talk in the press about sexual rehabilitation centers and the disease of sexual addiction. This area usually is represented by addictive and compulsive patterns of non-criminal sexual behavior that are compulsive, addictive, or fetishistic (compulsive masturbation, prostitutes, repetitive extra-marital affairs, etcetera). Recent studies show that between 3-5% of the population may have this sexual addiction problem.
The media will continue to fuel persistent misconceptions and public anxiety about the danger that sexual offenders pose to the society at large. Possession of child pornography and internet child exploitation prosecutions have allowed the distinction between contact and non-contact sexual offenders to be blurred. It is necessary for the defense lawyer to challenge many cultural assumptions and to become familiar with psychological information vis-a-vis motivation and patterns.
Wednesday, November 11, 2009
Crazy vigilante computer programs
Yesterday, I mentioned a couple of computer viruses that scared me and discussed one that hijacks your computer and deposits kiddie porn. Today's virus looks for child pornography on your computer!
A computer virus that was possibly intended to perform a public service, raises legal questions and seems sure to fuel the debate over computer privacy.
This virus, VBS.Noped.a, searches the target's machine for what it suspects may be child pornography and reports the names of files to the police. There are no reports of police officials acting on this kind of results as of yet. Antivirus software companies say it has not yet been distributed widely.
This virus was spotted by computer security companies back in May 2001. It arrived as an attachment to an e-mail message titled, ''FWD: Help us ALL to END ILLEGAL child porn NOW.'' When the recipient opened the attachment, child pornography statutes appeared on screen. The program then searched the user's hard drive for picture files that have pornographic-sounding names and then sent an e-mail message and a list of suspect files to a law enforcement agency picked at random from the program's database.
The message sent to the police said:: ''Hi, 'This is Antipedo2001. I have found a PC with known child pornography files on the hard drive. I have included a listing below and included a sample for your convenience.''
The virus also sent out copies of itself to addresses in the victim's e-mail address book.
Besides the program's invasive nature, the virus's search software was apt to falsely identify files as containing child pornography solely based on the filename. Police acting on these false results would cause irreparable harm to innocent computer owners.
Law enforcement agencies cannot search an individual's computer without a warrant, but they can and do use anonymous tips as part of their probable cause. A Justice Department lawyer said that law enforcement officials could legally conduct a search based on the tip, but added, ''That's a very different question from 'would law enforcement ever open an investigation based on that information?' ''
Perhaps the most troubling aspect of this is the havoc that the virus could wreak on the reputation of people with no involvement in child pornography.
There is no limit as to how far this information could spread. Local news organizations could receive information and report that a parent was under investigation as a for certain sex crimes. All this would be the result of an unwarranted and illegal entry to your private computer.
There were no known filtering-analysis programs that could accurately determine whether an image is of child pornography when this virus first appeared back in 2001. Now we have better methods for detecting child pornography based on hash marks and registered images.
Scary stuff!
A computer virus that was possibly intended to perform a public service, raises legal questions and seems sure to fuel the debate over computer privacy.
This virus, VBS.Noped.a, searches the target's machine for what it suspects may be child pornography and reports the names of files to the police. There are no reports of police officials acting on this kind of results as of yet. Antivirus software companies say it has not yet been distributed widely.
This virus was spotted by computer security companies back in May 2001. It arrived as an attachment to an e-mail message titled, ''FWD: Help us ALL to END ILLEGAL child porn NOW.'' When the recipient opened the attachment, child pornography statutes appeared on screen. The program then searched the user's hard drive for picture files that have pornographic-sounding names and then sent an e-mail message and a list of suspect files to a law enforcement agency picked at random from the program's database.
The message sent to the police said:: ''Hi, 'This is Antipedo2001. I have found a PC with known child pornography files on the hard drive. I have included a listing below and included a sample for your convenience.''
The virus also sent out copies of itself to addresses in the victim's e-mail address book.
Besides the program's invasive nature, the virus's search software was apt to falsely identify files as containing child pornography solely based on the filename. Police acting on these false results would cause irreparable harm to innocent computer owners.
Law enforcement agencies cannot search an individual's computer without a warrant, but they can and do use anonymous tips as part of their probable cause. A Justice Department lawyer said that law enforcement officials could legally conduct a search based on the tip, but added, ''That's a very different question from 'would law enforcement ever open an investigation based on that information?' ''
Perhaps the most troubling aspect of this is the havoc that the virus could wreak on the reputation of people with no involvement in child pornography.
There is no limit as to how far this information could spread. Local news organizations could receive information and report that a parent was under investigation as a for certain sex crimes. All this would be the result of an unwarranted and illegal entry to your private computer.
There were no known filtering-analysis programs that could accurately determine whether an image is of child pornography when this virus first appeared back in 2001. Now we have better methods for detecting child pornography based on hash marks and registered images.
Scary stuff!
Tuesday, November 10, 2009
Did the dog really eat my homework?
I almost want to throw my computer away after learning about a couple of stories this week regarding computer viruses.
Computer viruses can wipe out your hard drive, trash your data, steal your personal information, and take over your computer, but this virus might be the worst: This virus can make you an unsuspecting collector of child pornography. Viruses can store illegal pictures and videos by the malicious programs better known for stealing personal information. In this scenario, it's your reputation that's stolen.
Pedophiles are using virus-infected PCs to remotely store and view their collections without fear of being detected. These viruses can also cause your computer to surf illegal Web sites. The result is that you get kiddie porn on your computer — and might not realize it until police knock at your door with a warrant.
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon kiddie porn placed on a PC through a virus. This type of defense has been tried with mixed results in the past and it is one which is viewed with skepticism by law enforcement. It will costs potential victims hundreds of thousands of dollars to prove their innocence.
One case occurred when a victim's employer became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 times more data than his colleagues. A technician found pornographic images of children in the PC folder that stores images viewed online. The victim was fired and charged with possession of child pornography, which has a potential of sentence of up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends.
The victim and his wife spent $250,000 on legal fees to fight the case . This required liquidating their savings, taking a second mortgage and selling their car. This also caused health problems from the stress they endured.
The defense conducted a forensic investigation that revealed the laptop was infected with a virus. The virus programmed the computer to visit as many as 40 child porn sites per minute — an inhuman feat. While the victim was away from home one night, someone logged on to the computer and porn flowed in for an hour and a half.
Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.
"It's an example of the old `dog ate my homework' excuse," says Phil Malone, director of the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society. "The problem is, sometimes the dog does eat your homework."
Computer viruses can wipe out your hard drive, trash your data, steal your personal information, and take over your computer, but this virus might be the worst: This virus can make you an unsuspecting collector of child pornography. Viruses can store illegal pictures and videos by the malicious programs better known for stealing personal information. In this scenario, it's your reputation that's stolen.
Pedophiles are using virus-infected PCs to remotely store and view their collections without fear of being detected. These viruses can also cause your computer to surf illegal Web sites. The result is that you get kiddie porn on your computer — and might not realize it until police knock at your door with a warrant.
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon kiddie porn placed on a PC through a virus. This type of defense has been tried with mixed results in the past and it is one which is viewed with skepticism by law enforcement. It will costs potential victims hundreds of thousands of dollars to prove their innocence.
One case occurred when a victim's employer became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 times more data than his colleagues. A technician found pornographic images of children in the PC folder that stores images viewed online. The victim was fired and charged with possession of child pornography, which has a potential of sentence of up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends.
The victim and his wife spent $250,000 on legal fees to fight the case . This required liquidating their savings, taking a second mortgage and selling their car. This also caused health problems from the stress they endured.
The defense conducted a forensic investigation that revealed the laptop was infected with a virus. The virus programmed the computer to visit as many as 40 child porn sites per minute — an inhuman feat. While the victim was away from home one night, someone logged on to the computer and porn flowed in for an hour and a half.
Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.
"It's an example of the old `dog ate my homework' excuse," says Phil Malone, director of the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society. "The problem is, sometimes the dog does eat your homework."
Tuesday, November 3, 2009
Welcome to my first blog.
This high-tech stuff is a bit complicated so bear with me.
I intend to blog on a regular basis on topics related to criminal law and the criminal justice system.
One of the areas to be touched on is the criminal law as it relates to crimes committed while on the computer. Obviously you can sit in the privacy of your home or office and commit a lot of white collar crime You can do that in a suit and tie or in your pajamas.
You can threaten people on the computer.
You can blackmail people on the computer.
You can begin with some innocent sex talk that could develop into activity that could be construed as criminal.
You can download some pornographic photos and discover that amongst this pornography are some images that are considered child pornography.
The unique thing about computers is that they create traces, footprints or fingerprints, in short a record. You are not totally anonymous on the computer.
Take care and i'll talk to you again soon.
I intend to blog on a regular basis on topics related to criminal law and the criminal justice system.
One of the areas to be touched on is the criminal law as it relates to crimes committed while on the computer. Obviously you can sit in the privacy of your home or office and commit a lot of white collar crime You can do that in a suit and tie or in your pajamas.
You can threaten people on the computer.
You can blackmail people on the computer.
You can begin with some innocent sex talk that could develop into activity that could be construed as criminal.
You can download some pornographic photos and discover that amongst this pornography are some images that are considered child pornography.
The unique thing about computers is that they create traces, footprints or fingerprints, in short a record. You are not totally anonymous on the computer.
Take care and i'll talk to you again soon.
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