Sex Crimes

Student Post - Sixth Circuit Affirms One-Day Setence for Downloading Child Pornography

In a September 2009 opinion, the Sixth Circuit Court of Appeals upheld a district court sentence of a one-day incarceration and ten-year period of supervised release after the defendant plead guilty to two counts of knowingly receiving child pornography. You may view the ruling in United States v. Stall, 581 F.3d 276 (6th Cir. 2009) here. From the opinion:

[Defendant] downloaded illegal porn which allegedly spanned a number of years and very likely involved more than 18 images. The images included photographs of adult men penetrating girls ages 12 and under, many of which were previously identified by the National Center for Missing and Exploited Children as victims of sexual abuse. “Weighing in favor of a downward variance (of offense level), the presentence report (“PSR”) referenced Stall’s immediate expression of remorse and empathy for children harmed as a result [of his crime] as well as the fact that Stall quickly sought mental health treatment and continues to express significant remorse,” compounded with Stall being a first time offender.  Stalls at *4. The government urged the court to sentence Stall in accordance with the PSR, but did not make any affirmative arguments about why Stall’s circumstances compelled a specific sentence. “The government failed to specify that a noncustodial sentence would fail to adequately reflect the seriousness of the offense, promote respect for the law or provide just punishment.” Stall at * 14.  The Court held that the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.

Distinguish this from United States v. Pugh, 515 F.3d 1179, 1202 (11th Cir. 2008), which held that “despite the district court’s strong conviction that Pugh would not suffer from recidivism, the resulting sentence did not provide a sufficient mechanism to monitor Pugh for a length time, and thus protect the public from any future crime.” See also United States v. Goldberg, 491 F.3d 668 (7th Cir. 2007) (Posner, J.) (holding that a one-day sentence for a defendant who possessed and offered to distributed child pornography was unreasonable).

Judge Rogers dissented from the Sixth Circuit panels' holding saying, “the one-day sentence in this case does not, with reasonable sufficiency, avoid disparity in sentencing or provide for general deterrence.I would therefore vacate the sentence as substantively unreasonable and remand."

Student Post - "Sexting" as Child Pornography: A Modern Prosecutorial Dilemma

“Sexting,” the portmanteau of “sex” and “texting,” describes the act of sending a sexually explicit message or photograph electronically, particularly between cell phones.  Sexting is an act that has grown commonplace among teens and young adults.  The prevalence of sexting was recently confirmed in 2008 by the National Campaign to Prevent Teen and Unplanned Pregnancy which conducted a nationwide survey.  The National Campaign polled 653 teens (ages 13-19) and 627 young adults (ages 20-26) finding that 20% of teens overall and 33% of young adults overall have “sent or posted nude or semi-nude pictures of themselves.”

The problem for these young people is that in most states, voluntarily possessing, controlling or transmitting nude images of persons under the age of 18 is considered to be child pornography, and a felony.  For example, in the Illinois Criminal Code, one way child pornography is committed is when a person:

disseminates, offers to disseminate, exhibits, or possesses with intent to disseminate any film, videotape, photograph, or other similar visual reproduction or depiction by computer of any child [under the age of 18]…whom the person knows or reasonably should know to be under the age of 18…[and the child is]: 
(i) actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or animal; or… 
(iii) actually or by simulation engaged in any act of masturbation; or…
(iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or…
(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or if such person is female, a fully or partially developed breast of the child or other person…(720 ILCS 5§11-20.1(a)(2))

And so, over the past few years, “sexters” have begun to feel the stinging filo from the sword of justice as more and more teens and young adults are being charged with child pornography.  As of March 2009, Pennsylvania, Ohio, Michigan, Alabama, Wisconsin, Florida, New York, New Jersey, Connecticut, Texas, Utah and other states have filed criminal charges against teens for sexting. These cases are gaining more exposure from the media as many in the general public feel that sexting is more of a social/cultural problem and that state prosecutors are misusing their authority by zealously going after young offenders who unwittingly made a bad choice of judgment.  

In Florida, there is the case of 18-year-old Phillip Alpert.  Phillip had just turned 18 when he sent a naked picture of his 16-year-old girlfriend to many of her friends and family after an argument.  Phillip was charged and convicted of child pornography, was sentenced to five years probation and is required to register as a sex offender until the age of 43.  Additionally, Phillip was kicked out of college, cannot travel outside the country without making prior arrangements with his probation officer and is having trouble finding a job because he is a convicted felon.  Phillip admits that he made a poor, immature decision but does not feel that he should be punished for the rest of his life for this action.  Phillip’s attorney, Larry Walters stated, “Sexting…catches teens off guard because this is a fairly natural and normal thing for them to do.  [Sexting sounds] surprising to us as parents, but for teens it’s part of their culture.”  

Parents have begun to fight back against overzealous prosecutors.  In Pennsylvania, there is the case of 15-year-old Marissa Miller who, when she was 12-years-old, snapped pictures of herself and her friend in training bras during a sleepover.  Later, when the photos surfaced on a student’s cell phone, the district attorney contacted Marissa’s parents (and the parents of 19 other teens allegedly involved in this sexting incident) and offered them an ultimatum.  They could accept probation and attend 14 hours of a counseling program he devised or the teen would be charged with sexual abuse of a minor.  Seventeen of the students accepted the plea, but Marissa and two other girls instead sought the help of the ACLU.  The ACLU filed a suit in Federal District Court seeking an order prohibiting the district attorney from filing criminal charges against the three girls.  Witold Walczak, Legal Director for the ACLU of Pennsylvania, stated, “These are kids being irresponsible and careless, they are not criminals…child pornography is a terrible crime that involves abuse and exploitation of children, neither of which exists here.”  The District Court issued a TRO in late March 2009 and the outcome of the case is pending.

At the opposite end of the spectrum is the “sextortion” case involving a New Berlin, Wisconsin high school student named Anthony Stancl. Anthony allegedly posed as a flirtatious female on Facebook and would IM male students at his high school convincing them to send him naked pictures of themselves.  Anthony used those pictures to blackmail the students, threatening to expose the pictures publicly if they did not perform sexual favors for him, including having intercourse.  One male victim finally told his story to the police.  In Anthony’s computer was a collection “of more than 300 nude images and masturbation videos of the high school boys…who ranged in age from 13 to 18…thirty-nine sent pictures of themselves at least partially undressed.  Thirty-one of them sent pictures that police said were sexually explicit…Anthony threatened roughly half of the thirty-one with public exposure if they did not have sex with him…at least seven of them agreed to his demands.”  Anthony pled guilty to 12 felony counts and currently faces up to 293 years in prison.  The child pornography charge was an insignificant throw-in.  Ironically, the New Berlin school superintendant had been attempting to persuade AT&T to choose Anthony’s high school for a pilot program where every student at the school would receive an Apple iPhone loaded with educational applications.

The federal courts have given States the power and authority to regulate child pornography as they see fit, even in the face of right to privacy arguments and potential First Amendment freedom of speech violations.  In U.S. v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.D.N.Y. 2003), the U.S. District Court from the Southern District of New York held that child pornography statutes are permitted to sweep more broadly than traditional obscenity laws, without infringing the First Amendment, because they aim not to suppress offensive speech or images, but to protect children against exploitation.  Thus, the onus will remain on the States to make changes to their child pornography statutes.  

Lawyers and judges are taught to look at the legislative intent behind the law.  It can clearly be stated that child pornography laws were not created to prevent teens from electronically sending nude pictures to each other.  States must work to prevent malicious prosecution of a child who makes a momentary error in judgment.  Sexting may have a momentary social effect on the victim, but the more dire consequence is the long-term criminal effect on the transgressor (and potentially the victim as well).  It will be quite interesting to see the outcome of the Miller/ACLU case.  Diversion programs such as the one instituted by the Pennsylvania prosecutor might be a viable temporary solution.  However, the more permanent solution must involve a unified movement among the states to amend child pornography laws.  The Colorado state legislature has been among the first states to take on this issue by introducing HB 09-1132 during the 2009 First Regular Legislative Session.  Though it does not mention sexting specifically, the bill works to curtail this fad. The bill states, 

a person may be convicted of disseminating indecent material to a child via a computer, telephone, or data network, or by means of an instant-messaging or text-messaging system, if he or she knew the "character and content" of her or his communication and if that communication is with a person she or he believes is a child. Internet luring of a child would also include doing so via data or telephone network, as well as instant or text messages. To be convicted of Internet luring, the actor must be more than four years older than the age of the victim or the age the actor believes the victim to be. (13 U.C. Davis J. Juv. L. & Pol’y 416-418).

The Colorado lawmakers introduced this language to specifically target predatory adults.  Colorado is being progressive and proactive in its approach.  However, I do not foresee a majority of states following suit any time soon.  Legislatures are notoriously slow and rarely act preemptively, thus, we may first need to see more sexting cases and more of a public outcry before any sort of movement to change child pornography laws can begin.  Additionally, no politician ever wants to appear soft on crime, especially sex crimes, thus it may be hard to convince any number of legislators to create and sponsor such bills. Change will come; but how many teenagers will be martyred first?

Is Carrie Prejean A Sex Offender?

Carrie Prejean has generated a lot of news lately. Recently, the Former Miss California sued Miss California producer K2 Productions for religious discrimination allegedly for firing her after she made public comments opposing same-sex marriage. It is now rumored that Prejean dropped the suit after K2 Productions found a private sex tape, allegedly filmed when she was 17. While the gossip sites are discussing how Prejean's one sex tape is actually eight sextapes, the law blogs are discussing the various legal questions, including whether Mr. Prejean could be prosecuted for child pornography offenses. Prof. Berman has three great posts on the topic. From Mom Logic: 

It appears that Carrie Prejean is the latest to fall from the almighty Conservative/Christian throne. With the year this young lady has had, why is she still in front of cameras? Well, she went from Miss California to "In my country, in my family, I think I believe that marriage should be between a man and a woman ..."

As indicated by Professor Douglas A. Berman, Carrie "could be technically subject to the five-year minimum [sentence] under 18 USC 2252(a)(2) for distributing material involving the sexual exploitation of minors," as a result of producing and distributing "child porn."

While authorities and legislators have shown that they are willing to possibly be a little more lenient with sexting (texting nude pictures), as the federal child porn statute currently stands, possession of and transmitting child porn is against the law, regardless of who is responsible.

This sex tape that Carrie Prejean made is comparable to cases that have already resulted in convictions of minors who have produced and manufactured child porn for boyfriends/girlfriends; and those convicted have become registered sex offenders.

In America, sadly, this will probably only help her book sales. There is no doubt that her conduct, if it is as alleged, meets the statutory elements. However, as with the various sexting cases, the story of Prejean illustrates how reliant we have become on prosecutorial discretion in such matters.

New 'Sexting' Scholarship

John A. Humbach (of Pace University School of Law) has posted a new article on SSRN entitled: 'Sexting,' the First Amendment and Prosecuting Teens. From the abstract:

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

H/T: Legal Theory Blog.

Seven Indicted For Child Porn Found At Sex Offender Treatment Center

Seven residents at a Washington sex offender treatment center have been indicted on child pornography charges after allegedly obtaining the unlawful images at the center. From the Associated Press:

In unsealing the indictments Thursday, federal prosecutors said they didn't know how the defendants, who are prohibited from using the Internet, obtained the pornography, which allegedly was stored on their computers at the Special Commitment Center on McNeil Island. Among the possibilities: via the mail, or from a visitor or staff member.

"We cannot allow these sex offenders to be part of the market for horrific pictures of child sexual abuse," U.S. Attorney Jeffrey C. Sullivan said in a news release. "With these indictments we are putting the residents at the SCC, and anyone who is assisting them in obtaining child pornography, on notice that they will be prosecuted."

About 270 sex offenders live at the center, having been involuntarily committed for treatment after their prison terms because they are deemed too dangerous to release. If convicted, any of the defendants would face a mandatory minimum of 10 years in prison, and up to 20 years.

Prosecutor Declines to Bring "Sexting" Charges

A Michigan prosecutor has decided not to charge several high school students who distributed nude cell phone pictures of a 14-year old girl. From Fox News:

Prosecutor David Morse told reporters Monday that Pinckney High School and parents handled the matter appropriately. Morse says no purpose would be served by putting the teens on the state sex offender registry.

The sheriff's department in October confiscated a dozen mobile phones after the girl took a photo showing her genitals and sent it to friends. Authorities say about 200 people wound up getting the pictures.

About 20 students were disciplined.

This entire area of law depends upon the discretion of prosecutors. Legislatures really need to be more proactive to cure the problem so that it is not left to individual prosecutors.

'Sexting' Roundup

As previously noted, a Pennsylvania DA has threatened to bring child porn charges about three teen girls who had provocative pictures of themselves on their cell phones.  Their parent's later sued the DA (with the help of the local ACLU) and yesterday, a federal judge issued an order enjoining the DA from bringing child pornography charges against the girls. You can read the order here. The blogosphere is abuzz with the news: WSJ Law Blog, TalkLeft, Sentencing Law & Policy (1, 2), Ars Technica, How Appealing (1, 2, 3), Prawfsblawg (1, 2, 3, 4, 5), Concurring Opinions, Newark Star-Ledger, Reuters, Scranton Times-Tribune, and the Associated Press. From Reuters:

A U.S. judge on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.

The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.

"The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said.

The case has attracted national attention and revolves around the growing practice among teens of "sexting," a play on the term texting, in which nude or semi-nude photos are sent on cell phones or posted on the Internet.

The pictures, found last fall by officials of Pennsylvania's Tunkhannock School District, showed two of the girls wearing bras, and another standing topless with a wrapped towel around her waist. No sexual activity was displayed.

Last month Skumanick told the girls and 17 other students that he would charge them with possessing or distributing child pornography, which is a felony, unless they agreed to probation and participated in a "re-education" program.

All but three agreed to his demands, setting the stage for the lawsuit.

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision.

"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.

I'm a bit astounded at the degree of coverage around the blogosphere about this case. Don't get me wrong - I think the attention is a positive development. However, this isn't the first child pornography prosecution for "sexting" and it won't be the last. I applaud the ACLU for bringing the issue to national attention. Ultimately, though, I continue to believe a long-term solution to this problem will require action by legislatures. They have to change the definition of "child pornography" to either legalize these situations or make them a separate, lesser crime.

ACLU Sues DA Who Threatened Teen Girls with Child Porn Charges

Fresh off their victory over sex offender registry restrictions in the Pittsburgh-area, the ACLU of Pennsylvania has filed a complaint in federal court against a Wyoming County district attorney who threatened three high school girls with child porn charges arising from semi-nude cell phone pictures of themselves. You can read the complaint here.  For more coverage, check out Ars Technica and the Wall Street Journal Law Blog.

The American Civil Liberties Union of Pennsylvania filed a lawsuit today against the Wyoming County district attorney for threatening three high school girls with child pornography charges over digital photos in which they appear topless or in their underwear. The district attorney has demanded that in order to avoid the charges, the girls be placed on probation, participate in a five-week re-education program and be subject to random drug testing. The photos were among several discovered by Tunkhannock School District officials on students' cell phones.

"Sexting," the practice of sending nude or semi-nude photos of oneself via cell phones or posting them on the Internet, has become increasingly widespread among teenagers. A recent survey found that approximately 20% of all teenagers have sent or posted nude or semi-nude pictures of themselves.

At issue in this case are two photos depicting three teenage girls. One shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym used to protect the girl's real identity) standing outside a shower with a bath towel wrapped around her body beneath her breasts. Neither of the two photos depicts sexual activity or reveals anything below the waist.

The district attorney has asserted that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed. The district attorney has not, however, threatened to charge the individuals who distributed the photos.

I'm curious to see if any of the court challenges to these prosecutions have any success. Ultimately, I think the solution might have to come from the legislatures. Different types of child pornography crimes need to be categorized to reflect those differences. Regardless, prosecutors should make better use of their discretion in such cases.

The Dangers of "Sexting"

The Orlando Sentinel has an article detailing the story of a teenager who received nude photos of his 16-year old girlfriend while they were dating and subsequently sent them to "more than 70 people, including her parents, grandparents and teachers" after their breakup. He was charged with transmitting child pornography and is now a registered sex offender. Prevention Works has more. From the article:

After his former girlfriend taunted him, Phillip Alpert remembered the nude photos she e-mailed to him while they were dating.

He took revenge with an electronic blast — e-mailing the photos of the 16-year-old girl to more than 70 people, including her parents, grandparents and teachers.

Three days later, Alpert, then 18, was charged with transmitting child pornography. Today Alpert is serving five years of probation for the crime, and he is registered as a sex offender — a label he must carry at least until he is 43.

"I didn't know how bad of a decision it was," Alpert, now 19, said recently at his MetroWest apartment. "I don't think it's fair."

Alpert is one of many people across the country who are being charged with felonies and getting sentenced as sex offenders for doing something their friends do all the time, unaware of potential criminal charges.

One national study found that as many as 20 percent of teens have sent or posted nude or seminude photos of themselves in what has become known as "sexting." Young teens are using high-tech phones to text, post or e-mail racy photos — technically child porn. Most do it for fun.

But getting caught means being kicked off sports teams and facing expulsion from school. Others are going to jail.

Mass. District Court Finds Civil Commitment Law Unconstitutional

A helpful reader let me know that there was a new decision out of the District of Massachusetts finding the federal civil commitment scheme for sex offenders under the Adam Walsh Act was unconstitutional.  You can read the opinion here. From the opinion:

Congress lacked power to adopt the Act’s regime for the civil commitment of sexually dangerous persons either under the Commerce Clause directly or as its authority over interstate commerce is supplemented by the Necessary and Prope Clause. The civil commitment regime for sexually dangerous persons set forth in 18 U.S.C. §§ 4247, 4248 is void and unenforceable.  Accordingly, the respondent’s motion to dismiss the petition for commitment (dkt. no. 6) is GRANTED.  Unless some other valid basis permits Volungus’s continued incarceration beyond the expiration of his term of imprisonment, he is to be released forthwith.

The decision is notable because it creates a district court conflict in the 1st Circuit. However, the recent ruling is consistent with the 4th Circuit's opinion in Comstock (which I think had the better side of the argument).