Another Day, Another ECSA Sentence In the News
by: Ryan • October 14, 2011 • no comments
If you read the online comments on the Oregonian website, you see that the stories that get the most comments are those in which the commenter can put on display his or her moral outrage. This isn't limited to crime stories, of course, but crime stories do probably lend themselves to a reflexive moral posturing, just slightly ahead of political news or stories about government overspending.
Conversely, crime stories where it's not entirely clear who - if anyone - the reader should hate do not seem to draw as many comments.
Assuming the number of comments correlate loosely with internet traffic, then you can see why the Oregonian would have a financial incentive to push stories that push these buttons. And so it seems almost weekly we get another news story about the years in prison handed out to someone charged with downloading child porn.
Having seen another such story last night (19 years!), I wanted to remind everyone that there are challenges that can and should be raised routinely in these types of cases.
I. ECSA charges are likely unconstitutional
I know, I know. No one likes making these arguments until somebody else wins it, and only then will most defense attorneys file a constitutional challenge. But this isn't a complicated argument, no matter how little sympathy it will have with a trial court, and it's worth filing now.
In State v. Stoneman, the court found the ECSA statute didn't violate the Oregon Constitution's free speech provisions. Far from putting an end to these arguments, Stoneman is our best friend. The primary reason the early version of the statute was found constitutional was that it had a defense to pictures or video of sexually explicit behavior that didn't rely on sexual abuse. That is, if you took Polaroids (kids, ask your parents) of your seventeen year old girlfriend in Washington State, that wasn't a crime until you drove into Oregon. (The age of consent in Washington is 16; in Oregon, it's 18.) Well, it would be illegal, except at the time, you had a defense:
It is an affirmative defense in any prosecution under ORS 163.680 alleging the obtaining or viewing of a photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child that the production of the photograph, motion picture, videotape or other visual reproduction did not violate laws prohibiting production of such visual reproductions in the jurisdiction where it was produced and that, if imported into the United States, was done so lawfully.
The Stoneman court noted the significance of that defense:
That is, ORS 163.683 (1987) established that it was legal to purchase a visual reproduction whose "substance" is identical to that of the material described at ORS 163.680 (1987), so long as that reproduction is not the product of an act of actual sexual abuse of a child.
Why does the availability of that defense impact the constitutionality of the statute? Because as long as that defense existed:
ORS 163.680 (1987) thus was directed at commerce in the materials described in the statute only because they are the products of sexual exploitation of children. Its constitutionality must be reviewed in that light.
However, that affirmative defense was long ago repealed. This mean that photos or video that were legal in the places they were taken - i.e., photos that did not involve child sexual abuse - can still result in punishment in Oregon, where the age of consent is 18.
An ECSA statute that criminalizes images that aren't based in child sexual abuse - don't take my word for it, read Stoneman and its progeny - is unconstitutional. Period.
And as you'll remember from law school, a statute that criminalizes protected speech (expression, etc.) is unconstitutional even if the specific images at issue would not be protected. Thus, the fact that the images in your client's possession show a child under 10 is irrelevant to the constitutionality of the statute.
You can find a Sample Encouraging Demurrer .
II. Downloading Photos May Not Constitute "Duplication"
It's good to remember what the world was like when the current version of the ECSA statute was drafted. Take a look at this from 1994. You will want to laugh in part because you'll recognize yourself in that video.
Chief Justice DeMuniz of the Oregon Supreme Court has already criticized the Oregon legislature for failing to keep up with technological advancements. In Chief Justice De Muniz's concurrence in Barger, he pointed out that,
Although the Internet was a well established fact of life at the time that ORS 163.686 was enacted in 1995, nothing in that statutory text suggests that the legislature expressly intended to capture the kind of digital computer images that purveyors of child pornography now use as their principal means of communication and distribution."
He further mentioned that:
'photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child' is best interpreted under our framework for statutory analysis as a reference to the possession or control of some corporeal item a tangible, physical object rather than its purely digital counterpart."
With that in mind, we should note the fact that prosecutors are charging ECSA in the first degree based on a theory that downloading pictures meets the statutory requirement of "duplication." Again, referencing the Today Show clip above, we should probably assume that the legislature had not known what "downloading" was at the time the statute was written.
But ECSA in the First Degree was clearly intended to prohibit those actions which lent themselves to distributing child porn. Downloading pictures is not distributing, it is possession. It is the computer equivalent of hiding the photos underneath your mattress.
There are a variety of ways to attack a charge of "duplication" when the defendant merely downloaded. Pre-trial, during trial, post-trial. MJOA is probably the most important. Since the difference between ECSA I and ECSA II can be the difference between probation and prison, you shouldn't take one of these cases if you don't know the argument or aren't prepared to make it.
III. Merger
Photos that are all found during the execution of a single search warrant all arise from the same criminal episode.
The criminal code treats the fact of possession as a criminal act of a continuing nature. In this statutory sense, the possession of the television set and the drugs, existing at the same place and time, constitute a single occurrence. Once unlawful possession of goods, without more, is recognized as criminal conduct, there is no reason for fragmenting the criminal conduct into as many parts as there are different items of property, however acquired. If a defendant is charged with the possession of drugs, some of which had been acquired at one time and the rest at another time, it would seem clear that he would be entitled to object to multiple prosecutions. There would be no reason other than harassment of the defendant for the state to divide the condition of possession into parts and prosecute separately on each. The case should not be treated any differently simply because the items of contraband happen to be of different types. We hold, therefore, that the Court of Appeals properly treated this as a single episode.
Boyd at 570-571.
The fact that the possession all arises from one criminal episode should keep the court from reconstituting your client's criminal history score. (Thus, even a hundred photos found in the possession of someone with no criminal history would be presumptive probation for each count.)
If the children in the photos aren't victims, then even a hundred photos would merge into a single conviction. As COA noted in Betnar, it's a complicated question.
The issue raised by the parties' arguments is how many victims were involved in defendant's crimes. That is, it is not clear whether-when multiple charges are based on images of different children-ORS 163.684 contemplates that there was one victim or more than one victim, or whether the statute is intended instead to promote the general welfare of children, rather than to address a criminal act committed against a particular person. Because ORS 163.684 is subject to all of the above interpretations, it is not clear which subsection of ORS 161.067, if any, governs the merger issue in this case. No Oregon case has addressed that issue, and the answer is not obvious.
I don't know who the attorney was whose client - following a plea - got 19 years on ECSA charges. I don't know all the facts, so judgment is reserved. But hopefully, the attorney will see this and at least consider filing a motion in arrest of judgment based on the free speech argument above. But the reality is, as much as the popularity of this website has grown in the past year, there are still pockets of defense lawyers from around the state who never - or almost never - come here. That's unfortunate.
