The authors of this article wish to note at the outset that the purpose of this article is not to attack federal legislation aimed at protecting children and punishing sexual predators. To the contrary, this article will highlight commendable federal legislation directed at making children safer. However, in examining how the criminal justice system has responded to the rising tide of internet sex crimes, the authors wish to raise awareness about the erosion of defendants’ civil liberties in cases involving computer sex crimes. In doing so, the authors will provide a general commentary on the legal challenges raised by defense attorneys in cases involving child pornography charges.
The news story is almost always a variation of the same basic facts: a middle-aged man is arrested for having a hard drive full of child pornography or for using internet chat rooms to solicit sex from pre-teens. Night after night local news stations air stories about sexual predators who move to quiet suburban neighborhoods and secretly use the internet to prey on children. The NBC show Dateline has earned strong ratings for its notorious series “To Catch a Predator.” With shows similar to “To Catch a Predator,” the media has recently inundated the public with new stories about sex offenders. While performing the valuable service of educating parents about how to better protect their children, these news stories have also successfully bred an atmosphere of hysteria surrounding sexually disordered individuals.
Amid the outcries about the threats posed by suspected pedophiles, many are questioning how the legal system should respond to these individuals. An easy response is that sexual predators who commit heinous crimes against children should be locked up in jail indefinitely. A well-reasoned response, however, considers the role of science, research, and treatment. In an interview with the host of “To Catch a Predator,” Dr. Fred Berlin, founder of the Johns Hopkins Sexual Disorder Clinic, made an apt parallel between alcoholics and sex offenders. Dr. Berlin noted that fifty years ago, society regarded alcoholics and drug addicts as moral degenerates who could not be helped by any medical treatment. Similarly, today society casts off sex offenders as morally repugnant individuals not worthy of any rehabilitative efforts. With seemingly endless news segments about sex offenders endangering children across the country, one must ask whether the absence of treatment facilities for those with sexual disorders is at all connected to the problems posed by these offenders.
To facilitate the prosecution of sexual offenders, the government has responded with a steady stream of legislation over the past twelve years. The increase in federal legislation directed at the dangers posed by sexual predators began in 1994 with the passage of The Jacob Wetterling Crimes Against Children and SexuallyViolent Offender Act [hereinafter “the Wetterling Act"]. Before sexual offender registration programs were common, this legislation required states to create such programs or else forfeit particular grant funding for state and local law enforcement agencies. In 1996, two years after the brutal rape and murder of seven-year-old Megan Kanka, President Clinton amended the Wetterling Act with Megan’s Law. This amendment directed states to establish community notification systems to inform residents when convicted sexual offenders move to new neighborhoods.
More recent examples of legislation targeting sex predators include the PROTECT Act of 2003 and the Adam Walsh Child Protection and Safety Act [hereinafter “the Adam Walsh Act"] President George W. Bush signed both laws in an effort to facilitate the prosecution of sexual offenders who prey on children. The PROTECT Act seeks to improve the ability of law enforcement officers to investigate and prosecute crimes against children. It has received the most attention for its increase in the use of Amber Alerts by creating a national coordinator for state and local Amber Alert programs and for its imposition of mandatory minimum sentences for crimes involving the sexual exploitation of children. In July 2006, the Adam Walsh Act took effect and since its inception it has received both praise and criticism. Supporter’s have acclaimed the Adam Walsh Act for expansion of the National Sex Offender Registry by incorporating data from state sex offender registration systems and for its grant of additional resources to Internet Crimes Against Children Task Forces, Critics, however, have challenged the constitutionality of Section 3509(m) of the Adam WaIsh Act for its infringement upon a defendant’s due process and fair trial rights.
Fortunately, Congress has reached the point now that instead of enacting legislation to fill voids in laws aimed at protecting children, it is amending laws to improve upon already existing programs. For example, concerns exist that once convicted sexual offenders register with local authorities, they become lost in the system and elude subsequent registration requirements. In response to this problem, Florida congresswoman Ginny Brown-Waite, sponsored the Jessica Lunsford Act, H.R. 1505, which is currently pending in Congress. Congresswoman Brown-Waite designed this legislation to improve upon the registration requirements put into place by Megan’s Law. According to supporters of this legislation, sexual predators too easily circumvent the community registration and notification systems put in place by Megan’s Law. Proponents contend that sexual offenders regularly register at one address, but in fact reside at another. To combat the threats posed by sexual offenders with unknown whereabouts, the Jessica Lunsford Act seeks to require sexual offenders with two or more convictions for failing to register to wear satellite monitoring devices for a minimum of five years so that law enforcement officials can locate them at any point in time. To monitor and verify the addresses of non-serial sexual offenders, the legislation requires states semiannually to mail registration forms that the post office cannot forward.
In order to understand how the worthy objectives of the legislation aimed at protecting children become a reality, it is useful to identify the various federal agencies involved in investigating internet crimes involving children. The Department of Justice oversees four main investigative agencies that address sexual crimes against children: the National Center for Missing and Exploited Children [hereinafter “NCMEC"], Internet Crimes Against Children [hereinafter “ICAC"], Innocent Images National Initiative [hereinafter “Innocent Images"], and the Child Exploitation and Obscenity Section. ICAC officials investigate both online and offline suspected predators, while Innocent Images agents focus exclusively on internet child exploitation. In terms of whether investigations occur primarily on a state or federal level, no specific formula exists. Generally, these federal agencies work closely with local law enforcement officers.
Those unfamiliar with computer-based child pornography offenses are often surprised to learn that members of ICAC and Innocent Images can search a computer user’s hard drive for child pornography without the user even realizing that an investigation is occurring. The leading means by which sexual offenders circulate digital child pornography is by means of peer-to-peer file sharing programs such as Lime Wire and Kazaa-the same programs used to share music files. Peer-to-peer programs link computers together through the Internet and form a network intended for sharing files among fellow program users. When a sexual offender obtains and distributes digital child pornography by means of peer-to-peer software, law enforcement officers can easily investigate the individual.
It is not unusual for an investigation of someone suspected of possessing child pornography on a computer - hard drive to unfold according to the following sequence of events. As an initial matter, a government agent working in an undercover capacity logs into a peer-to-peer file sharing network and searches for keywords associated with known images of digital child pornography. After locating files containing the keywords on another network user’s computer, the agent downloads the files and records the Internet Protocol [hereinafter “IP"] address from where the images came. The agent will then confirm the IP address sending the files and subpoena the screen names, email addresses, and phone numbers associated with the IP address sending or receiving the alleged child pornography. Upon receipt of this information, law enforcement officers will obtain search warrants to execute a physical search of the computer-users home or wherever the computer is located.
Not surprisingly, the combined effect of the legislation targeting sexual offenders and the efforts of investigative units focusing exclusively on internet crimes against children has been a dramatic increase in the number of arrests and prosecutions of suspected sexual predators. From 1996 to 2005, Innocent Images has reported a 2000% increase in the number of new cases opened and arrests made in connection with the sexual exploitation of children. The group has also reported a 1000% increase in the number of convictions and pretrial diversions, which is up from 68 defendants in 1996 to 994 defendant in 2005. As of September 2006, the National Center for Missing and Exploited Children has reported approximately 579,974 registered sexual offenders nationwide, with 15,973 of those offenders residing in Ohio.
Rapidly Evolving Caselaw
Until 2002, child pornography caselaw remained virtually idle. Since then, it has rapidly evolved in order to keep pace with the issues raised by technological advancements. Prior to 1982, the government could only prosecute an individual for possession of child pornography if the material was first found to be obscene under the standard enunciated in Miller v. California, 413 U.S. 15 (1973). In 1982, the Supreme Court case of New York v. Ferber, 458 U.S. 747 (1982) changed the way government officials prosecuted child pornography cases. The Ferber court held that pornography involving minors is not entitled to First Amendment protection, provided that the conduct prohibited is adequately defined by applicable state law. According to the court, “it is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor* is compelling.”
Following the Ferber decision, caselaw evolved little until the landmark United States Supreme Court decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In Free Speech Coalition, the Court addressed the legal issues raised by images actually depicting child pornography and those that only purport to depict child pornography by means of digitally altering photographs of adults. The Court held that if an image purporting to depict a minor does not depict an actual minor, the image does not constitute child pornography, and therefore, presumptively receives First Amendment protection. According to the Court, “[p]rotected speech does not become unprotected merely because it resembles the latter.”
In the wake of Asftcroft v. Free Speech Coalition, Congress revised the federal statute governing the receipt and distribution of child pornography to establish an affirmative defense based on the fact that the alleged child pornography was not produced using any minor(s). For this reason, whether an image depicts an actual child rather than a digitally morphed adult remains a critical issue for defense counsel to explore in every case. A proper examination of digital images requires the expertise of highly skilled digital forensics and imaging experts because, as the district judge in United States v. Frabizio, 445 F.Supp.ad 152 (Aug. 2006), stated, “visual observation is not adequate to the task of differentiating the real [child pornography] from the virtual.”
Trial courts across the country have revealed their uneasiness with the fact that computerized images of minors remain virtually indistinguishable from images depicting real minors. The result of judicial reluctance to recognize the inherent differences between real and virtual child pornography has been the erosion of defendants’ civil liberties. In order to avoid the First Amendment protection established by Ashcroft v. Free Speech Coalition, trial courts are making threshold determinations that a jury can distinguish actual child pornography from digital images purporting to depict child pornography. Courts are making such findings despite the existence of scientific evidence to the contrary.
Ohio caselaw is replete with examples of trial courts ignoring the principle that real and virtual child pornography are indistinguishable. For example, in State v. Bettis, 2005 WL 1385220 (12th App. Dist. 2003), the court claimed that “Ashcroft v. Free Speech Coalition did not establish a broad, categorical requirement that, absent direct evidence of identity, an expert must testify that the unlawful image is hat of a real child. Triers of fact are still capable of distinguishing between real and virtual images, and admissibility remains within the province of the sound discretion of the trial judge.” In reaching this conclusion, the Bettis court relied on State v. Gunn, 154 Ohio App.3d 170 (12th App. Dist. 2003), a case in which the court rebuffed the defendant’s authentication argument and assuredly proclaimed that the photos and videos forming the basis for the criminal charges “speak for themselves.”
Bettis and Gann illustrate how, in cases involving internet child pornography and other computer-based sex offenses involving children, trial courts willingly relax rules of evidence - especially within the realm of authentication and hearsay. With respect to authentication, rather than holding the government to its burden to produce someone who has seen or who knows the child depicted, courts regularly admit photographic evidence after a law enforcement officer merely testifies that he or she obtained a bard drive or storage device, found the images in dispute, and subsequently produced photographs of the images. When defense attorneys push government witnesses to explain their process of authenticating the photographic evidence in question, the witnesses often find themselves relying on layers of hearsay because other agents analyzed the images in question. Despite the heinous nature of sex offenses involving children, the Sixth Amendment guarantees each defendant the right to a fair trial-one in which judges apply the rules of evidence just as they would in any other criminal matter.
To date, only one Ohio court has recognized the bias that assails cases involving sexual offenders. In State v. Tooley, 2005 WL 3476649 (11th App. Dist.), the Eleventh District Court of Appeals reversed the trial court’s conviction and held that the statute making it a criminal offense to pander sexually oriented matter involving a minor was overbroad. To reach its decision, the court examined the First Amendment and various evidentiary issues involved in the trial. Unlike the trial court, the Eleventh District Court of Appeals acknowledged that the statute involved threatened protected speech child-pornography not depicting actual minors-and that the state relied upon hearsay to authenticate the images in question. Currently, the Tooley case is on appeal before the Ohio Supreme Court
Regardless of the outcome in Tooley, defendants must continue to push courts to apply constitutional dictates and evidentiary rules in an even-handed manner. Although internet sex crimes against children are certainly some of the most heinous crimes plaguing society today, courts and attorneys must not lose site of the fact that defendants are presumed innocent until proven guilty and that precedent applies equally throughout the entire criminal justice system.