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Child pornography cases are among the most difficult cases to defend because the moral outrage over the offense is significant, the collateral consequences are great, and the law is complicated. For those reasons, there is ordinarily tremendous pressure on an accused service member to plead. Before that sort of life changing decision is made, a consultation with experienced counsel is advisable.
Child pornography is an Article 134 offense in the military. The elements are: Possessing, receiving, or viewing child pornography -That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and, -That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Possessing child pornography with intent to distribute -That the accused knowingly and wrongfully possessed child pornography; -That the possession was with the intent to distribute; and, -That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Distributing child pornography -That the accused knowingly and wrongfully distributed child pornography to another; and, -That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Producing child pornography -That the accused knowingly and wrongfully produced child pornography; and, -That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Maximum Punishment The maximum punishment for all offenses is a dishonorable discharge and forfeiture of all pay and allowances. The term of confinement increases per offense. For possessing, receiving, or viewing child pornography the maximum term of confinement is 10 years. For possession with intent to distribute, the maximum confinement is 15 years. For distributing child pornography the maximum confinement is 20 years. For producing child pornography the maximum confinement is 30 years. Lesser Included Offenses The lesser-included offenses for possession, receiving, or viewing child pornography are Article 80 – attempts. For all other offenses, the lesser-included offenses are Article 80 – attempts and Article 134 – possessing child pornography. Discussion Under the law, child pornography is “…material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.” In many cases, the visual depictions of minors are clearly of sexually explicit conduct. In other cases, - particularly clothed images - it's not as clear. Law enforcement and prosecutors have become exceptionally sophisticated and experienced at prosecuting child pornography cases. This is rightfully so. The inflammatory nature of the offense and substantial punishments makes the decision to plead or contest the case exceptionally difficult. For young defense counsel, a child pornography case requires a steep learning curve in terms of digital forensics, mental health aspects of the client, and often presentation of a compelling sentencing case in mitigation. One of the first steps by defense counsel should likely be a close examination of any searches and seizures that occurred. Secondly, defense counsel may seek to obtain certain experts. Counsel will probably need a digital forensic examiner. A mental health professional will be required to examine the client and possibly make a risk assessment. Finally, if the images warrant, a doctor could be required to assess whether the images actually depict minors. We have certainly seen cases where doctors were unable to determine the age of the individual in the images. Defense counsel should carefully scrutinize the charge sheet, particularly if possession of a large number of images or videos is alleged. Often child pornography cases involve a substantial need for a case in mitigation. Sentences have steadily risen in child pornography cases because of a few that offenders are more likely to commit physical abuses against children. Expert testimony may be required to discuss recidivism rates. An expert can conduct a neuropsychiatric exam. Sometimes the STATIC-99 actuarial risk assessment methodology can be useful – though some question the reliability of the assessments. Recent law does permit the accused in an unsworn statement to mention potential sex offender registration. United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2013) A couple of lessons from the 2014 and 2013 Court of Appeals for the Armed Forces term are important: -In cases involving minors who are clothed, the images may not constitute child pornography. United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2014); -The government needs to specify which of the subsections of the statute are being alleged. United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2014); -In cases involving digital or animated child pornography (cartoons) the following points must be remembered. The definition of child pornography found in 18 USC § 2256(8)(A) makes criminal any photograph, film, video, or picture of actual children engaging in sexually explicit conduct; subsection (B) makes criminal digital images of either actual children or those indistinguishable from actual children engaging in sexually explicit conduct; subsection (B) also contains the requirement that, in addition to being lascivious, all digital images must be graphic, which means that a viewer can observe any part of the genitals or pubic area of any depicted person. The more onerous graphic requirement applies only to digital images because of the constitutional danger that the images might not be of actual children. The distinctions between the subsections are not inconsequential; if an accused were charged under subsection (A), the government would not need to prove the images at issue were graphic, but would need to prove the images were of real children; if charged under subsection (B), the government would need to prove the digital images were both graphic and lascivious, but would not be required to show the minors were actual children. -The statute, 18 USC § 1466A(b)(1), prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors. The statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children. Furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room. United States v. Bowersox, 72 M.J. 71 (C.A.A.F. 20012). Four electronic images depicting appellant’s stepdaughter in various stages of undress were not child pornography within meaning of the Child Pornography Prevention Act because the images did not contain an exhibition of the stepdaughter’s genitals or pubic area. United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2011). |
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