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Loophole in Child Porn Law?

Loophole in Child Porn Law?
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Sep 9, 2005 2:00 PM PDT    Text size: 
WASHINGTON — In an effort to combat an apparent loophole in child pornography law, two Republican senators introduced a bill late Thursday that would give police and other law enforcement officials the right to pose as minors in online chat rooms and on other sites where children can potentially be victimized.

Missouri Sens. Kit Bond and Jim Talent said the bill was in response to a recent decision by a Kansas City judge to overthrow the conviction of Jan Helder, an attorney who solicited sex from a 14-year-old girl who was actually a Platte County deputy pretending to be a minor.

U.S. District Judge Dean Whipple threw out the conviction because Helder had, technically, solicited an adult, Whipple said in his ruling. This was the second case in a month that Whipple had overturned on such grounds, and came just days after a Maryland Court of Appeals overturned a similar conviction.

Interestingly, state laws in both Missouri and Kansas explicitly state that officers can pose as minors, but federal law does not. On the flipside, convictions for child pornography on the federal level can be much more severe, calling for up to 30-year prison terms, while Missouri state law carries a comparatively light seven-year maximum. Bond said he wants his legislation to move the severity of the federal law to the state level, while at the same time copying state guidelines into the federal system.

“Sexual predators shouldn’t be allowed to roam our streets and stalk our children in cyberspace because an outrageous loophole exists in the law,” Bond said when he introduced the bill.

Legal experts are divided on the effects of Whipple’s ruling, which goes against at least three other federal appeals court rulings in similar cases, and may call into question the convictions in at least 30 cases in Kansas City alone, and potentially thousands of cases nationwide. But Whipple may have the Supreme Court on his side, which said in a 2002 ruling that pornography using fake children, regardless of whether the audience knows it or not, does not amount to child porn.

“There are some potentially very serious issues being raised with this case,” Kansas City attorney William Price told XBiz. “From what I know about the case, Whipple is essentially saying that you cannot create a crime to capture a criminal, something the Supreme Court has upheld for a long time.”

Price added that the bill might actually prove counterproductive to the intent of its creators.

“If this thing gets tied up in Washington, law enforcement may have to wait for the legislation to get worked out before they can bring somebody in on federal charges,” he said.

Even though his initial conviction was overturned, Helder isn’t in the clear, and is being prosecuted on the state level for his solicitation. But Sen. Talent said that isn’t enough.

“This is an especially interstate type of crime,” Talent said. “I want our prosecutors, both local and federal, to have as many options as possible.”

Neither a representative from Whipple’s office, nor Helder’s attorney, J.R. Hobbs, would comment on the ongoing case.

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