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Prosecution Must Prove Age in Child Porn Cases, Judge Says

Prosecution Must Prove Age in Child Porn Cases, Judge Says
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XBIZ London - Sept. 15-18
Dec 7, 2005 1:00 PM PST    Text size: 
MINNEAPOLIS — It is the responsibility of prosecutors, not defense, to prove age in suspected child porn cases, a Hennepin County judge ruled in Minnesota today.

The ruling overturns a state law that was found to put the burden in child porn suits on the defense to prove whether or not a person depicted in a pornographic image is a minor.

The ruling stems from a case involving Donald D. Schoen of Minneapolis, who was charged in May with six counts of child porn possession. Schoen’s attorney, Jeff Dean, had argued that Minnesota’s child porn law was unconstitutional because the law required judges be the ones to decide whether evidence proved the person depicted was a minor.

Because the “age proof” decision was left to a judge, and not to a jury, Dean argued that the law deprived a defendant of their right to a jury trial.

District Judge Stephen Swanson agreed, originally striking down Minnesota’s entire child pornography statute on the grounds that it was unconstitutional, but returning this week with his eyes just on the burden-of-proof issue, leaving the rest of the law in place.

Swanson’s ruling is just the latest in the complicated arena of child pornography; one in which uniform federal guidelines have yet to be ironed out and where laws can vary greatly from state to state.

“This is a really complicated issue,” ASACP Executive Director Joan Irvine told XBiz. “Proving age is often really difficult. First of all, let’s remember that the majority of child porn out there today isn’t originating from the U.S. A lot of it is coming from Russia and other Eastern European countries. So my question there is, ‘How do you prove that kid’s age when you have no way of getting a hold of them?’”

Irvine said the result is often bringing in doctors and forensic experts to study suspected photographs, who go through a complicated set of study to determine whether the image in fact features a child.

“But we all know what some of these sites do to make the people look young,” Irvine said. “Photoshop and everything else.”

The result. Irvine said, is that proving child porn cases can be very difficult except in cases of extreme youth, such as those involving toddlers and babies.

Of course, in many states, including California, simply viewing child pornography is not illegal. Instead, someone has to actively download or in some way seek out possession of the images to open up possible prosecution.

“But how do you charge them?” Bob Branford, a St. Paul attorney familiar with the Schoen case, told XBiz. “Do we charge per image, per download, per scene, per copy or some other method? Just like in obscenity cases, nobody has really hammered these out yet. Frankly I doubt we ever will.”

In May, a Michigan court tried to sort out whether the act of burning downloaded images to a disc should be considered production of child porn, a crime that carries a much harsher penalty than the one for simple possession, even if the defendant never intended to distribute the images. That case is still ongoing.

Three years ago the Supreme Court declared unconstitutional the Child Pornography Prevention Act of 1996, which made it a crime to spread "virtual" child pornography on the Internet. The court said the law's definition of virtual child porn was too broad.

Several attempts were made by Congress to pass follow-up laws, all of which failed.

States from Kentucky to Vermont and Georgia to Massachusetts have vowed to tighten restrictions on child porn lately, and federal prosecutors have obtained more than 1,066 convictions on child pornography charges in federal courts during this fiscal year, a threefold increase from the past seven years, according to U.S. Attorneys.

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