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Section of Child Porn Law Tossed

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Nov 6, 2003 12:00 AM PST    Text size: 
KNOX, Tenn. – In a surprise ruling, a Knox County judge dismissed a section of state law on child pornography calling it unconstitutional.

The ruling came as a result of an ongoing debate among statewide attorneys over a smattering of child porn cases currently clogging the Knox courts, in particular a series of computer pornography cases that are still being tried in accordance with a federal law that was struck down by the U.S. Supreme Court last year.

The exploitation law at issue has two sections. The first provision bans the use of actual minors in pornography that engage in sexual activity or simulated sexual activity that is "patently offensive."

The second provision, and the one that was tossed out by Judge Richard Baumgartner today, bans pornographic material that appears to show minors, whether or not there is proof the participants are under age.

In his ruling, Judge Baumgartner stated that the second section of the current law protecting children from sexual exploitation was flawed because it hands the power over to a jury to determined whether a person depicted in child porn material is in fact a minor.

According to Baumgartner, the clause in question could lead to the conviction of a person for possessing pornography even when a minor was not exploited.

According to reports, Baumgartner upheld the first provision of the child pornography law. If he had decided to strike down the entire law, there would have been a dismissal of all child pornography cases pending in his court and others to follow.

From this day forward, prosecutors must now prove that child pornography offenders were engaged with, or distributing child porn, based on images of actual minors.

Baumgartner's ruling could make proving future child pornography allegations a formidable task because prosecutors will have to locate the actual child victims and provide proof of their status as minors, even if the offense happened years, if not decades ago.

Additionally, a great deal of child pornography content is generated from countries all over the globe, posing yet another impossible task for prosecutors to tackle.

Prosecutors are currently consulting with the Attorney General's Office over whether an appeal through a higher court can be sought against Baumgartner's ruling.

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