MCM Addition of Para. 68b.–and How is that Not Unconstitutional?
As CAAFLog notes below, the new MCM Amendments seek to add an Art. 134 offense for various child pornography related offenses to alleviate the constitutional issues with proving images of child pornography are actual children. First, I’d like to say that it was nice to see the drafters considered the unintentional receipt issue–though the drafting reminds me of another provision by creating a burden shifting issue in requiring the defendant to disprove intentional possession.
But, more importantly, someone please tell me how the definitions of used in the underlying “child pornography” offenses in proposed paragraph 68b. aren’t hopelessly overbroad, namely variants b(1) (“Possessing, receiving, or viewing”) and b(4) (“Producing”)? Here are the relevant definitions (possession and production are offenses):
“Child Pornography” means any visual depiction of a minor, or what appears to be a minor, engaging in sexually explicit conduct.
“Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.
“Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.
See 74 Fed. Reg. 47785, 47786 (strangely “viewing” is not defined). The First Amendment issue was exactly why the child pornography statute was drafted the way it was, i.e. to include only real minors. The problem of private possession of cartoons and the like was one of the main problems discussed in the original enactment, as even the Fourth Circuit recently acknowledged in U.S. v. Whorley. As the Fourth Circuit majority stated,
In [Stanley v. Georgia, 394 U.S. 557 (1969)] the Supreme Court held that a Georgia statute prohibiting the possession of obscene matter, even within the home, was incompatible with the First and Fourteenth Amendments. Id. at 568. Finding the statute too broad, the Court explained that “traditional notions of individual liberty” and the paramount importance accorded in our society to the “privacy of a person’s own home” create a “right to be free from state inquiry into the contents of [one’s home] library.” Id. at 565. Thus, the government’s regulatory “power simply does not extend to mere possession [of obscene materials] by the individual in the privacy of his own home.” Id. at 568.
United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), reh’g and reh’g en banc denied, 569 F.3d 211 (4th Cir. 2009). The justification for the current PROTECT Act prohibition on cartoons and virtual child pornography is the use of interstate commerce to send and receive obscene material. See id. Not to mention the fact that the cartoon and virtual image provision itself has been found unconstitutional by at least one US District Court, U.S. v. Handley, 564 F. Supp.2d 996 (S.D. Iowa 2008), though admittedly that represents a minority view. However, notably the proposed paragraph does not explicitly require that the depictions be obscene, something that even the Fourth Circuit acknowledged was required to prohibit transmission in interstate commerce of cartoon images.
The paragraph could really use something of a re-write to get around these very problems that took Congress years to solve. A potential solution to the private possession issue might be a requirement that the depictions become public, something akin to Art. 88′s requirement that through “an act of the accused [the pictures] came to the knowledge of a person other than the accused.” And, addition of the word obscene somewhere in the definition wouldn’t take much work. As for the burden shifting issue, see U.S. v. Neal.
FYI, I am trying to edit the post to give you the full definition of possession that I am discussing. But, suddnely my browser has gone to all HTML when editing. When that all resolves I’ll update the post. Here are the definitions of possessinf and producing:
(6) “Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession
inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.
(7) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.
Being the same definition of “possession” as in Article 112a, the drafters probably felt that the definition has withstood the test of time (and court cases).
Jackal-last time I checked weed, or possession thereof, didn’t implicate free speech rights. But, that may be the flaw in my argument.
The limits of various rights can be different for persons in the military than for civilians. Thus, the prosecution for possession of virtual child porn in the military may pass constitutional muster as long as it is narrowly tailored and supports a legitimate and substantial government interest (or a standard to that effect).
Falcon
It’s been a while since I’ve dealt with a CP case, but doesn’t the “or what appears to be a minor” language seem problematic? Seems to me that pornography depicting what appears to be a minor but is actually an adult is decidedly NOT child pornography. So now we’re criminalizing perceived depravity?
What will they think of next?
We already criminalize perceived depravity (adultery, threesomes, sodomy) all under the guise of good order and discipline. I’m sure that the government line to 1st Amendment arguments will be a la the Chief Justice – “You’re in the Army now.”
I don’t foresee even CAAF overturning this. I think it would take a cert grant to get any real traction.
SDC, fair point. However, at least adultery, 3somes, and sodomy have some common law hertiage. What about having sex with a person whom I believed to be 14, but was actually 18? This is criminalizing behavior that the accused thought was illegal, but actually wasn’t (so I guess now it is illegal).
I am ever more certain that there are pre-cogs hidden in the Capitol basement somewhere!
Check out the Irvin (60 MJ 23) and Mason (60 MJ 15) cases.
Ashcroft v. Free Speech Coalition is still good law–CAAF is still bound to follow it. I don’t see how virtual porn can be criminalized based solely on the accused being in the military. Would also run into problems where the “children” really aren’t children, but rather young-looking 18 year olds.
I also have problems with the idea that it’s OK to have sex with a 16 year old, but can’t have a nude picture of that same person?
I don’t see how viewing is going to pass constitutional muster. What if someone accidentally finds CP on another person’s computer? They had to “view” it in order to report it as CP–have they now committed a crime? How long does one have to view it? 1 second, a minute? What if a virus puts it on a computer, so no matter how much a person tries to delete it, it keeps popping up?
Sometimes good intentions and motives can make bad law.
Ama,
Thanks for the cites. I knew the issue had to have been dealt with before, just couldn’t remember the cite and was too lazy to look. As to the question about viewing, there are safe harbor provisions within the law that allow for someone who accidentally views CP to delete it immediately and report to LE.
For TDC out there, relying on a constitutionality argument is no doubt a loser at trial, and all the way up to CAAF. Good luck getting cert with the Supremes. I would wager that the first real test of this law won’t come until there is a prosecution based on what is no kidding virtual porn, and not “it could be.” I haven’t seen one of those yet, but if someone has I’d love to hear about it.
SDC I think you are being over-cynical for one.
Second, viewing is very problematic. A fellow Soldier says hey Snuffy, come look at this, turns out that Soldier is an idiot showing you porn (or for a more realistic situation, you are borrowing his computer and you view the porn) and say you turn away disgusted but don’t report him. The command is mad at you when it comes to light later and charge you too.
That’s a situation that certainly wouldn’t even make it past the Service Courts, and I have very little faith in ACCA.
I agree that the Service Courts could very well attempt to try and find a work-around for Ashcroft based on military necessity or some expansion of the General Article but I still think CAAF would not blatantly ignore Ashcroft.
Why don’t we talk about how this potential change might impact any actual child porn prosecution? Have any of you actually looked at a child porn case file and thought, “My client is an artist so misunderstood by the prosecution. He only wants to convene a First Amendment protected speech?” Be real. Maybe the accused started out seeking to download “adult” pornography and stumbled on some impages of child porn. If he skipped over these files to download a video of adults engaging in sexual intcourse, I am confident there will be no charges. If you are being charged with child porn there is almost certainly an image of genitalia and a todler somewhere on your computer. The accused may never have touched a child, and might not even ever be the slightest risk of touching a child, but the accused looked at a picture of a real child being horribly, sexually abused. That child would not have been abused if someone, somewhere wasn’t willing to pay for it. Let the legal theory run where it may, real children are being hurt.
you are confident there would be no charges if he “skipped” over those images? You clearly do not understand how viewing web pages works. Each and every image on a webpage is saved as a separate image file. So someone who sees child porn on a website while seeking out adult pornography (and it isn’t that hard to do by the way or at the very least it isn’t hard to come across photos of questionable age) then they WILL have child porn on their computer.
CID, being the ahem blunt instrument that they are, won’t try and discern that maybe those images were part of a legit adult porn search and some TCs, particularly new ones will be too trusting of CID or their experts (and the last child porn case I defended against (full acquittal by the way) I knew more about computers than the expert did.)
This idea that who cares children are being hurt and there probably aren’t any virtual child porn images out there nor are any folks being charged with child porn by accident or misidentification (hello, Tanner Scale) ignores that the latter isn’t true at all, and the former is only a matter of time with increasing technology AND that the statute as written could as easily cover cartoon images as real live children.
Is the new buzzword going to be, but what about the cartoons?!
Anon 0039,
If you read the cites Ama Goste posted you’ll see that CAAF has already made the distinction. As for the viewing issue you are talking about, yes, that is problematic. My comment regarding getting something overturned was based on the “appears to be a child” language, not the hypothetical you raised where Snuffy is shown CP and the perp later tells CID that he watched it too.
I have no doubt some SJA and TC would try to charge that. I’ve met enough that have a God complex who would (probably to leverage an OTH in lieu). I think that that scenario is one that TDC should absolutely be raising all issues possible.
Finally, Anon 1214 makes good points that I don’t need to expand on.
Mason was a guilty plea case AND it was under Clause 1/2, this seems to be a little different to me which is why I don’t think it is directly on point. There isn’t a case that deals with a contest similarly situated that I am aware of.
I was the same Anon in both posts, I just think there is a lot of problematic and fertile ground for appellate defense and trial defense counsel in this proposed law.
Anon 1239 —
I once had a “viewing” case as appellate defense counsel similar to the one you described. The appellant pleaded guilty to a novel clause 1 offense. He stipulated and testified that when he was on duty, some other guy comes in with a laptop and brings up a succession of CP images while the appellant and a few other guys look on, and the appellant doesn’t do anything to stop the conduct.
I argued that the mj failed to elicit facts sufficient to support the clause 1 element because the appellant’s conduct was merely passive, and without something in the record suggesting he actively participated, the only thing the evidence showed was that he witnessed some other guy commit a crime. The CGCCA panel ruled against me in a 2-1 decision.
Parenthetically, there were other CP offenses unrelated to the “viewing” offense on the charge sheet…
Sounds like a bad ruling but again guilty pleas seem to be dealt with differently than contested cases in this area.
I think a few of the posts miss the point that regardless of whether the images or real, morphed, cartoons, or stick figures, the law is reltively clear that if it is obscene it can be regulated and/or banned. The only reason for Free Speech Coalition’s distinction between real and not real was that was Congress’ hook to get around the personal possession problem in Stanley v. Georgia. Congress found that there was a harm to real children when images were sent and thus used that as the hook to ban them in interstate commerce (that’s overly simplistic, but close).
Bottom line is that Congress can regulate/ban distribution of obsecene material for the US as a whole, not just the military. The thing Congress can’t do under Stanley is ban possession of obscene material.
Thus, in the end, I think Mason and Irvin are largely irrelevant as their facts don’t address this issue because (a) Irvin questioned the providence of a plea and not the consittutionality of an offense, and for that matter, the accused admitted the images were actual children and used itnerstate commerce to download them and (b) Mason was again a providence inquiry and involved downloading images the accused admitted were CP and were downloaded on his government computer.
“In Alford v. United States, 282 U.S. 687, this Court almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the “place of residence” of a prosecution witness over the insistence of defense counsel that “the jury was entitled to know ‘who the witness is, where he lives and what his business is.’” 282 U.S., at 688-689.”
Smith v. Illinois, 390 U.S. 129, 132 (1968).