Have the Appellate Court and Prosecutor Ordered Jurors to Re-Victimize Sex Abuse Victims?
The answer to that provocative title is, I think, "no." But that comes from a very subtle distinction I believe the COA is making in an opinion -- St v Reeves -- that came out today. But I may be reading into the opinion a nuanced distinction that doesn't exist.
In an opinion a few weeks ago from the Court of Appeals, the Court held that in a prosecution involving the viewing (but not creating) of child porn, the prosecutor could compel the jurors to view the videos, even if the defendant stipulated that the videos were in fact child porn videos.
I don't want to tar all prosecutors with this brush. Most, I believe, would accept the defendant's stipulation, rather than make the jurors watch the videos. But this case was out of Washington County and presumably involved a Washington County prosecutor.
Today, the Court of Appeals issued another opinion on the topic of child porn. It answers what has been an open question of long-standing. Are the children depicted in the videos "victims" every time the videos are duplicated? (No one disputes that the children are victims of the crimes that occurred when the videos were taken.)
Two things to note about the COA opinion. First, since it only dealt with ECSA in the First Degree (duplication), it doesn't technically address ECSA in the Second Degree (mere possession, without dissemination). Even so, it doesn't touch on -- much less address -- one of the biggest problems with the conclusion they reach, that the children are victims every time the videos are duplicated
For example, what if the children were no longer alive when the videos were taken? People already dead at the time a crime is committed are not "victims" under Oregon law. I don't want to be morbid, but we can safely assume the videos people watch now are the same videos they'll be watching a hundred years from now. Are the children victims in perpetuity, not even the grave can save them from being victimized every time someone duplicates the video?
What the COA wrote is this:
- "We agree with the trial court that each duplication of the visual recording 'constitute[s] a revictimization' of the child depicted.'"
As I have indicated previously, while I understand the visceral appeal behind such a ruling, I think it's quite wrong, both legally and morally. Without minimizing the great harm done by child abuse, I think it is better to think of the children as survivors who have overcome child abuse than people who are victimized repeatedly, over years and decades and centuries, whenever someone downloads a video somewhere, sometime.
But legally, I think it is obvious that the statute is designed to root out and destroy the market for such videos, so that future children are not victimized in order to satisfy the demand of the market. This is why the crime is called "encouraging child sexual abuse." It is intended to discourage the motive to create more videos by punishing the audience for such videos. As long as the crime is generally intended to protect future victims of child sex abuse, it is designed to protect children generally and not the specific child in the video.
And again, today's ruling creates a conflict, unless it wants to hold that dead people can be victimized over and over again.
But I think the opinion leaves open the door to a distinction that would save the opinion from utter absurdity. Note that what the Court didn't hold is that merely viewing the video makes the child a victim. The full quote from the opinion says:
- We agree with the trial court that each duplication of the visual recording "constitute[s] a revictimization" of the child depicted. The specific harm addressed by ORS 163.684 is the proliferation of such depictions of child abuse. Urbina, 249 Or App at 271.
This could mean that merely viewing such images in one's possession does not victimize the child, as long as the possession doesn't contribute to the proliferation of the images. That may be a subtle distinction the COA is not, in fact, making, but if they do not make it, if every viewing victimizes the child over and over again, then every time the police view the videos, or the prosecutor, or the jurors, the child is once again re-victimized.
Aside from the disgust at such images, do you think the prosecutor or detective feels guilt over victimizing the child by possessing the images they've downloaded from the defendant's computer? Do you think the Wash County prosecutor thought she was victimizing the children herself by showing the video -- over the defendant's objection -- to the jury? No of course not. It would not occur to them that they themselves were victimizing the children. Nor do I think the COA -- in its opinion from a few weeks ago -- felt that they were enabling the revictimization of child sex abuse victims by letting the prosecutor show the videos to the jury over the defendant's stipulation.
The COA could make the distinction that viewing is not victimization but mere possession is. That would mean the jurors weren't revictimizing the children but the detective and prosecutor still would be when they downloaded or took possession of the videos that had been in the defendant's computer. If possession is enough to revictimize, then that's all it take to make the depicted children victims for all eternity.