Dealing with Child Pornography

With the ease of exchange and degree of anonymity provided by the internet, dealing with child pornography has become a challenge.

By Nicholas G. Himonidis (New York)

The issue of child pornography is so distasteful and abhorrent to most clients and their counsel that the issue is rarely discussed or addressed unless and until it is staring them right in the eye. That is not the time to first become aware of the legal issues and practical implications of such a discovery.

The sad reality is that child pornography has been on the rise for years. Fueled by the ease of exchange and degree of anonymity provided by the internet, the purveyance of such material has increased dramatically. The discovery of child pornographic material on computers examined by enforcement or submitted for examination by private sector forensic professionals has risen sharply and this trend is expected to continue.

There is a good chance that any attorney involved with cases where electronic evidence will be sought, produced and/or examined, will have to confront this issue at some point.

Over the years, we have often been presented with the issue of child pornography, either discovered on, or suspected to reside on, a computer or digital storage device.

In many cases, we are told there is basis to suspect there might Child Pornography on the computer(s) in question.

In several instances we have been informed that there “might be” Child Pornographic Material on a certain party’s computer, but that if we discovered same, we were to take no action, pending direction from counsel for the client who was seeking to engage us. For the reasons set forth below, we have always declined to accept any engagement on such terms. (In point of fact, our Client Services Agreement contains language specifically addressing this issue).[1]

While it is impossible to properly evaluate and comment on any particular situation absent the specific facts, it is clear that counsel in the above situations were sorely misinformed about the relevant law affecting the discovery and possession of Child Pornographic Material.

In furtherance of the appropriate discussion and analysis of how to deal with the discovery of Child Pornographic Material versus the mere discovery of evidence indicating a party may have purchased, downloaded, sold or exchanged Child Pornographic Material, we would like to share the following information, authorities and opinions which we believe are directly relevant.

Possession of Child Pornographic Material

Both federal and New York State law contain criminal statutes dealing with Child Pornography. The Federal Law, which obviously applies in all states including New York, is strict, unequivocal and plain as to what is required.

In short, the federal law criminalizes the mere possession of Child Pornographic Material, and provides severe criminal penalties for same. There is no “intent” requirement. The only required element of mental state is “knowingly” as applied to the physical possession.

Once discovered, both of the above requirements are satisfied. The statues, and substantial case law on point, make it clear there is no exception which would serve to make such possession non-criminal for anyone other than law enforcement. The only safe harbor comes in the form of an affirmative defense provided in the statute itself. That affirmative defense requires that upon discovering that one is in possession of this material, the person promptly and in good faith either destroyed the material, or turned it over to the authorities.

The Federal Statute in question is as follows:

18 USC § 2252   Certain activities relating to material involving the sexual exploitation of minors

SECTION (A) Any person who—

 (1) knowingly transports or ships in interstate or foreign commerce
by any means including by computer or mails, any visual depiction, if—

 (a) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and

 (b) such visual depiction is of such conduct;

 (2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been    shipped or transported in interstate or foreign commerce, or which contains materials which have   been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—

(a) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and

(b) such visual depiction is of such conduct;

(3) Either—

(a)  in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly sells or possesses with intent to sell any visual depiction; or

(b) knowingly sells or possesses with intent to sell any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means, including by computer, if—

(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; or

(4) Either—

(a)  in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly possesses 1 or more books, magazines, periodicals, films, videotapes, or other matter which contain any visual depiction; or

(b) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if—

(i) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
and

(ii) such visual depiction is of such conduct; shall be
punished as provided in subsection (b) of this section.

SECTION (B)

(1)  Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such person has a prior conviction under this chapter, section 1591, chapter 71section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

(2)  Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

SECTION (C)

Affirmative Defense — It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant—

(1) possessed less than three matters containing any visual depiction
proscribed by that paragraph; and

(2) promptly and in good faith, and without retaining or allowing any
person, other than a law enforcement agency, to access any visual
depiction or copy thereof—

(a) took reasonable steps to destroy each such visual depiction; or

(b) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction

In interpreting the federal child pornography laws, federal courts have been particularly draconian in their interpretation of the statute. We have found no reported case representing an exemption from the criminal penalties associated with possession of this material for anyone other than law enforcement. In other words, neither an attorney, nor a forensic examiner working for such attorney, may possess this material, for any purpose, for any duration of time, any more than they could legally possess a quantity of cocaine or an illegal firearm.

Federal Case Citations

“Child pornography is illegal contraband.” U.S. v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995) (emphasis added) (citing 18 U.S.C. 2252(a) (4); Tex. Penal Code 43.26; New York v. Ferber, 458 U.S. 747, 756-59, 102 S. Ct. 3348, 3354-55, 73 L. Ed. 2d 1113 (1982)).  We decline to find that …it can be distributed … or copied. (The court refused defendant’s demand for access to copies of the items seized pursuant to a search warrant).

The statute prohibits the mere possession of three or more matters portraying such material. U.S.v. Ellison, 113 F.3d 77 (7th Cir. 1997). (The Court of Appeals declined to make any distinction between “personal use” and “trafficking” as it relates to Child Pornographic Material and upheld the lower court’s sentencing under a harsher set of guidelines).

There is no “innocent” use of Child Pornographic Materials sufficient to spare any party from prosecution pursuant to 18 U.S.C. 2252. U.S. v. Matthews, 209 F.3d 338 (4th Cir. 2000) (The Court of Appeals refused to find any exception to the statute based upon a claim that the materials were part of a work of journalism or research, or that the defendant’s First Amendment rights were violated).

There are no “good Samaritan” exceptions for would be informers seeking to assist law enforcement. U.S. v. Hilton, 257 F.3d 50 (1st Cir. 2000)(The Court of Appeals found no exception or exemption to the statute where the defendant had previously contacted and met with law enforcement, but was subsequently told that he was not to collect any Child Pornographic Material and that he was not allowed to possess any such material).

Some authors compare Child Pornographic Materials to drugs. This comparison does not go far enough. Child Pornographic Materials are better described as a radioactive substance.

The substance taints anyone coming in contact with it, and that stain remains until that party is “decontaminated.” Rather than a chemical shower, the party needs to avail itself of a narrow opportunity written into the statute. Federal statutes make clear that there is a precise response dictated by the discovery of Child Pornographic Material. There is no room for any private party to deviate from the delineated course of conduct.

Discovering Child Pornographic Material

Upon discovery of Child Pornographic Material, a forensic professional must stop their examination, sequester the material and notify law enforcement. Any adverse consequences relative to the civil action are necessarily subordinate to the federal prohibitions against possession of child pornography.

The discovery of actual Child Pornographic Material must however be distinguished from the discovery or possession of evidence tending to prove a subject has purchased, sold, downloaded or transferred Child Pornographic Material. This scenario, where no actual Child Pornographic Material has been uncovered, would need to be analyzed under traditional concepts of attorney – client and work product privilege etc.

The federal statutes criminalizing possession, sale, distribution etc. of Child Pornographic Materials are broad, strictly interpreted and in large part pre-emptive over state law. As a result, most prosecutions related to Child Pornographic Material are in the federal system. This reality has relegated New York State law on the issue of possession of such materials to one of secondary importance. Nonetheless, New York State law does in fact deal with this issue, and the relevant statutes/excerpts are included below.

New York State Penal Law

PL § 263.11  Possessing an obscene sexual performance by a child

A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any obscene performance which includes sexual conduct by a child less than sixteen years of age.

*Possessing an obscene sexual performance by a child is a class E felony.

PL § 263.16  Possessing a sexual performance by a child

A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

*Possessing a sexual performance by a child is a class E felony.

PL § 263.00: Definitions

As used in this article the following definitions shall apply:

1.  “Sexual performance” means any performance or part thereof which, for purposes of section 263.16 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.05 or 263.15 of this article, includes sexual conduct by a child less than seventeen years of age.

2.   “Obscene sexual performance” means any performance which, for purposes of section 263.11 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.10 of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such terms defined in section 235.00 of this chapter.

3. “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

4.  “Performance” means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience.

5.  “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

6.  “Simulated” means the explicit depiction of any of the conduct set forth in subdivision three of this section which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks.

7.         “Deviate sexual intercourse” means the conduct defined by subdivision two of section 130.00 of this chapter.

8.  “Sado-masochistic abuse” means the conduct defined in subdivision five of section 235.20 of this chapter.

PL § 235.00  Obscenity; definitions of terms

The following definitions are applicable to sections 235.05, 235.10 and 235.15:

1.  “Obscene.” Any material or performance is “obscene” if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

2.  “Material” means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.

3.  “Performance” means any play, motion picture, dance or other exhibition performed before an audience.

4.   “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

5.   “Wholesale promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate or to offer or agree to do the same for purposes of resale.

6.     “Simulated” means the explicit depiction or description of any of the types of conduct set forth in clause (b) of subdivision one of this section, which creates the appearance of such conduct.

7.      “Sodomy” means any of the types of sexual conduct defined in subdivision two of section 130.00 provided, however, that in any prosecution under this article the marital status of the persons engaged in such conduct shall be irrelevant and shall not be considered.

[1] T&M holds itself to the highest standards of integrity and professional ethics. We strictly enforce and adhere to all applicable New York State Laws regarding confidentiality of CLIENT’s information, and every applicable legal privilege. Notwithstanding any of the foregoing, CLIENT is hereby advised and agrees that if during the course of any investigation on CLIENT’s behalf, T&M uncovers: : 1) Child Pornography; or  2) Clear and convincing evidence of imminent criminal conduct which is likely to result in physical harm to any natural person; then T&M shall make appropriate notifications to Law Enforcement or other appropriate governmental authority as and when deemed appropriate in T&M’s sole and absolute discretion.

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Nicholas G. Himonidis is an attorney, licensed Private Investigator, Certified Fraud Examiner and Certified Computer Forensic Specialist. He is a Vice President at T&M Protection Resources, LLC in New York City, where he heads the firm’s Private Investigation Division. For more information, please visit our website at www.tmprotection.com.

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Published on: January 27, 2012