As a criminal defense attorney, I occasionally run across someone who thinks they want to "test" my by giving me all sorts of horrible situations and then asking me if I could defend the person accused of that crime. It usually shocks and appalls them when I tell them I can pretty much defend anyone accused of anything because even the worst of us is still entitled to our day in court and a fair trial. The funny thing I've noticed, though, is that people rarely test me about murders or thefts or anything like that. They test me about sex crimes, specifically rape and child molestation. It is these crimes, not murder, that most people consider the worst of the worst.
Unfortunately, though, it is my experience that these crimes are also the least understood, because what people imagine when they say "rape" or "child molestation" is rarely what the cases actually look like.
Most "rape" cases aren't some stranger jumping out of the bushes and using a weapon to force himself upon a woman he has never met. In most rape cases, the parties knew each other beforehand and may have even had consensual sex before. Often, the question isn't whether they had sex, but whether it was consensual. Since sex usually takes place in private, there are rarely witnesses to back up either story. Medical evidence is often inconclusive, since certain types of consensual sex can produce the same physical markers as rape. I have had some success, though, using the state's medical evidence to point out that the "rape" could not have happened as the "victim" described.
Similarly, child molestation cases often arise within families and at times when it gives someone a tactical advantage, such as during a divorce and a child custody battle. Few things put a father at a disadvantage more than sudden accusations that he has been molesting the children for years.
Other times we see child molestation charges arise between a boyfriend and girlfriend. A 15-year-old girl fooling aroung with her 17-year-old boyfriend makes the boyfriend a child molester. If they have consensual sex, he's a stautory rapist. The crimes are misdemeanors, but the label is the same, and may land the young man on the Sex Offender Registry for life. (Try getting a job or a home in a decent neighborhood with something like that hanging around your neck.)
But what if instead of fooling around in person, she just sends him a picture of her naked self? Well, then he's a child pornographer and a felon! It often shocks people when I tell them that a young man is better off to actually have sex with his underaged girlfriend than to receive a naked picture of her, but that's the law.
To further confuse the issue, the Supreme Court has said that possession of "digital child porn" (imagine Avatar crossed with child porn) that does not depict a real child is Constitutionally protected free speech, but then they later upheld the PROTECT Act, which
makes it a crime to offer or solicit sexually explicit images of children.
The law . . . applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.
So can a parent offer to send a grandparent a video of the grandchildren playing naked in the bathtub? Maybe not. Granny may be a child pornographer in violation of the PROTECT Act if she asks for it, even if it is never sent.
With such counter-intuitive sentencing laws that fail to keep up with technology, one would think that our elected leaders would amend the laws to allow more sensible sentencing, but no.
From USA Today:
President Obama signed three bills into law on Friday, including one that doubles jail terms for some child pornography crimes.
The Child Protection Act of 2012 doubles prison terms from 10 to 20 years for certain offenses.
So once again, Congress has increased the punishments for child pornography on the theory that it creates a market for a product that injures children. But does it? How is the girlfriend injured by sending a picture to her boyfriend? Sure, she may be injured if he resends it to someone else, but that's a different crime. His mere possession of it already makes him a "pornographer" even though the "child" initiated the act.
With the advent of Skype, FaceTime, and camera phones in the hands of millions of teenaged girls, we are going to see more and more young men branded "child pornographers" because they received a picture from a frisky underaged girlfriend. They shouldn't be treated the same as the people who are trafficking in thousands of pictures of complete strangers, but I see very little effort from our elected leaders to carve out an exception for these far-less-serious cases.
If you or someone you know faces prison and a lifetime on the sex offeder list because of the confusing child pornography laws, give us a call.