Okay, so I read this article about reasons to legalize child porn. I DO NOT want to debate it here. I might post in GD later, but this thread is specifically about a legal issue brought up in the article.
He brings up the scenario of someone continuously filming their day (not too farfetched in the near future), and witnessing a child rape in progress. In this case, merely possessing the evidence is a crime. Not only that, but he asserts (and I am not sure if this is true) that possessing the evidnece is a BIGGER crime than the rape itself. So, question A) Is it true that posessing child porn is a bigger crime than raping a child?
The second question is this: Since destroying evidence of a crime is a criminal act, and in this case possessing evidence of the crime is also a criminal act, what is the proper, legal course of action here?
Note, I’m not asking about the moral course of action. I would personally help bring the rapist to justice even if I had to risk my own freedom. But I’m asking what the LEGAL course of action is.
Understand that the local DA ALWAYS has discretion about what to prosecute based on interpretation of if a crime was committed. Also this scenario depends on your local/state laws. But to boil it down, accidentally filming a child getting raped is not the same as possessing child porn, unless you hold on to the video for your own private use or share it.
Obviously if you call the cops right away there is no way you are going to get charged with a crime unless of course they suspect you are lying about the accidental nature of your filming.
Yes, destroying the film is a legal problem and probably a crime. No, possessing this video is not “a bigger crime” than raping the child. This seems obvious.
But frankly there is no moral or legal gray area here. You call the police and share the film.
A) Of course not
B) Report it to the police immediately. In the insane event you are prosecuted, and brought to court, and somehow the jury doesn’t nullify, then you will be pardoned.
Also, as I understand it, possessing snuff films is not a crime. Possessing child porn IS, and it doesn’t matter why. If I film a murder, that film can be used as evidence against the murderer, and I’m only in trouble if it appears that I was an accessory to the murder. In the case of CP, it doesn’t matter whether I was an accessory to the crime or not. Merely possessing the evidence is a crime. Yeah, any prosecutor with brains won’t prosecute, but they can if they so choose, and I’ve still committed a crime by possessing the evidence whether they prosecute or not.
Then don’t film child porn in the first place. If that means not filming anything ever, then don’t film anything ever. It’s up to you to decide the level of risk that you are willing to take.
If you inadvertently destroy evidence (“I failed to notice it on the tape”), you could not reasonably be held liable for destroying it. The police/courts have to be aware of the existence of the evidence before you can be cited for destroying it.
Probably your best course would either be to ask a cop for advice in the matter (“Suppose my home surveillance camera recorded …”) or to package the content and get it to the authorities without identifying yourself.
Can anybody film it? If the bank across the street points the security camera that way, are they now criminals? Can the police legally possess the security camera logs? Is visual evidence of sexual crimes against children legal at all? Can the evidence be shown in court? I don’t think that’s the intent of the law, but I’m asking about the actual implications of the law, not the intent.
Also, can I get some cites? What are the punishments for child porn and child rape and how do they compare? What exactly is the law regarding possession of CP? Also, let’s leave aside for the moment prosecutorial discretion. I want to know what the black and white text of the law says and/or implies. I’m in Illinois, but you can pick any US jurisdiction.
You can look up your state laws on the internet. 720 ILCS 5/11-20.1(b)(3) – law enforcement and treatment etc., 720 ILCS 5/11-20.1(b)(5) – involuntary possession, 720 ILCS 5/11-20.1(c) and following – penalties. I’ll leave it to you to play around with Google, but I suggest that you will learn more about how to find state laws if you start by visiting the state’s website, and from there drill down through the statutes.
When Clint said "Make my day!"someone in the audience tossed a memory card containing child porn onto Obama’s chair, which made Obama strictly liable for possession of child porn, so Clint shot him.
From what I can glean from this impossibly dense legal document, there are exceptions for law enforcement and courts, but not the bank’s security camera or a bystander collecting evidence of a crime.
It appears from the penalty secion (c), that a witness who takes video evidence of the crime can be charged with a Class X felony, with a maximum fine of $100,000, and have their digital property seized.
From here, it looks like the child rapist (“predatory criminal sexual assault of a child”) is also a Class X felon, but instead of a fine, they face a minimum of 6 years and a maximum of 60. I’m unsure whether the child porn class X felon would get a less harsh sentence than the child rapist class X felon, there just isn’t a minimum imprisonment.
So we still have the case here where civilians are discouraged from collecting or turning over evidence of a crime, while they are encouraged to destroy such evidence before they are discovered possessing it. Well, I couldn’t actually find the penalty for “destruction of evidence”. It might actually be a harsher sentence than possessing the evidence in this case, but I doubt it.
When I was learning about this offense a while back, I was led to believe that it wasn’t generally strict liability but required the defendant to have a general knowledge of the nature of the material. For example, if your brother sent you a disk that actually contained child porn but he told you that it contained (decent) pictures of your niece at your mom’s 60th birthday party, you are not actually guilty unless you actually look at it or possibly exercise recklessness in not investigating it (e.g. if the disk was given to you under suspicious or shady circumstances). If you, say, recognize that the disk contains an image of a child being raped but you honestly believe it is legal under case law established by State v. McPervert because it has artistic merit, but you are wrong and the image is actually illegal, the fact that you thought it was legal is no defense.
One problem with this crime and why it seems to occupy a lot of thoughts is that it seems so simple to commit, or be set up to commit or framed for , and the penalties are so unbelievably severe that you almost can’t help but be frightened a little.
Another way to stretch this is to look at other contraband. Has there ever been a case where a druggie decides to quit and destroys their drug stash and is charged with Obstruction of Justice for destroying their illegal drug stash that was illegal to keep anyway? What about destroying illegal guns?
Re-read the second sub-section that I referenced. It specifically protects folks who involuntarily come into possession of child porn so long as they don’t hang on to it.
The law set out in this section is silent as to whether or not such evidence should be turned over, so it neither encourages nor discourges (but that is just this section – you need to look to see how other sections apply). Some jurisdictions do not have mandatory reporting, some have mandatory reporting for certain persons (e.g. film makers, ISPs . . .), and some jurisdictions have mandatory reporting for everyone. If a state has partial or full mandatory reporting requirements, don’t necessarily expect to find them in the same section of the statutes as the the sections that prohibit possession of porn. They may be there, or they may be somewhere else, for example, for your jurisdition, have a look at the Abused and Neglected Child Reporting Act. Once you have made a thorough search of your jurisdiction’s laws, you can then assess the degree to which its laws encourage or discourage turning over evidence.
I did see that section, but perhaps I misinterpreted it. I don’t see how it applies in this case, because I knew what was depicted since I recorded it, and I didn’t “terminate my possession” of it even though I had sufficient time, because I wanted to turn it over to law enforcement as evidence.
I would just hate to trust my life to prosecutorial discretion, because prosecutors are people, and people are occasionally unreasonable. I also feel like there is an incentive to prosecute an open and shut case like this to increase their successful conviction numbers.
I admit, however, that I’m not knowledgeable enough to correctly interpret the law, and I trust you guys that if I turned the evidence over to police in short order, I would not have committed a crime, even technically. I’ll just have to (continue to) hope this scenario never presents itself to me.