Intent to Duplicate and Disseminate
by: M saltzman • June 23, 2010 • no comments
This post addresses whether the act of taking sexually explicit photographs is sufficient to demonstrate an "intent to duplicate and disseminate" such material under ORS 163.684 (Encouraging Child Sex Abuse in the First Degree).
Duplication includes any act of generating a new electronic copy of a sexually explicit photograph. See State v. Dimock, 174 Or.App. 500, 502 (2001) (affirming a decision holding that the defendant duplicated sexually explicit material by downloading images from the internet to his home computer and by forwarding the images to others via email). In addition, the finder of fact may infer an individual's acts of duplication where evidence shows that he had multiple copies of the same image in his possession, as well as the means of making such copies. See State v. Betnar, 214 Or.App. 416, 426 (2007) (holding that a trier of fact could infer the defendant had duplicated images where he had copies of the images on floppy disks, CD-ROMs and printed photographs, as well as a computer that could make such copies). Therefore, where the evidence shows that a defendant had copies of sexually explicit photographs that he took on his computer or on any discs or printed matter, he will likely be found to have duplicated the material per ORS 163.684. If, on the other hand, a defendant is not found to have uploaded images from his camera onto any other device or medium, the argument could be made that he never intended to duplicate them at all. Nonetheless, assuming he has the means of duplicating the photographs (i.e., a computer onto which he could download the photographs), the fact finder may infer that he had at least the intention to duplicate them.
Intent to disseminate probably requires a demonstrated intent to share the photographs with others, or a demonstrated habit of sharing such photographs along with the means to do so. While there is no Oregon case law detailing what is required to demonstrate an intent to disseminate, other jurisdictions have required evidence showing that the defendant "intended for anyone else to see or receive" the material in question, People v. Tombs, 679 N.W.2d 77, 86 (Mich. App. 2003), or that the defendant had a history of sharing such material and the present means to do so, see People v. Phillips, 831 N.E.2d 574, 575-76 (Ill. 2005) (finding intent to disseminate where the defendant admitted that he exchanged child pornography over the internet and where evidence showed he had internet access from his computer); Com. v. Sullivan, 774 N.E.2d 679, 682 (Mass. App. 2002) (finding intent to disseminate where the defendant kept sexually explicit magazines in the same location where he had in the past kept magazines to distribute). Where a defendant indicates no intention to share photographs with anyone else, and has no history of sharing such material with others, he probably does not demonstrate an intent to disseminate. The Ninth Circuit's decision in U.S. v. Zimmerman implies a broader reading of "dissemination," holding that copying images from a disc to a computer "constitutes a form of 'dissemination to the public.'" 171 Fed.Appx. 8, 10 (9th Cir. 2006). However, Zimmerman should not be seen as suggesting that the defendant himself, by copying images to his computer, disseminated the material. Rather, his actions fell within a general means of public dissemination that allowed the court to assert federal jurisdiction under the Commerce Clause. See Zimmerman, 171 Fed.Appx. at 10. As such, Oregon courts should give "intent to disseminate" the narrower construction consistent with the decisions of other jurisdictions.
Nonetheless, to prevail on a charge of intent to duplicate and disseminate under ORS 163.684, the state need only prove that the defendant intended either to duplicate or to disseminate the photographs. See State v. Bray, 342 Or. 711, 718 (2007) (emphasizing the use of the conjunctive "or" in the statute). Therefore, if the state can prove an act of duplication or the requisite intent to duplicate, it will not need to prove the intent to disseminate.
