At issue is 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.
Former Township Treasurer Brian Lee Hill already has pleaded guilty to charges that he downloaded thousands of pictures of children in sexual acts and burned them onto discs.
He also pleaded guilty to secretly videotaping teenage foreign exchange students left in his care. Over the course of several years, Hill took enough footage of boys taking showers to fill 50 videotapes.
Police last November seized the videotapes and discs of downloaded images, which Hill had ontained from Russian websites, during a raid after receiving a tip.
Saving child porn images to a disc is a felony in Michigan, but has previously been a “tier-three” felony, meaning the defendant is considered a consumer of the images only. Convictions for such simple possession have typically carried a maximum penalty of four years in prison, and sentences often run less than one year.
But prosecutors in Hill’s case are arguing that the law needs to be updated for the Internet age. Specifically, they say that when Hill copied the images, he became a producer of child porn, which is considered a “tier-one” felony, making Hill eligible for sentencing of up to 20 years in prison for each production charge.
Distribution, a “tier-two” penalty, carries a maximum seven-year sentence.
Hill was charged with 16 counts ranging from abusive sexual activity to eavesdropping, including eight “tier-one” counts of producing child pornography in relation to the content he downloaded from the Internet.
A District Court judge agreed with the prosecution's request to charge Hill with the more serious felonies for production, but Hill’s lawyer has asked a Circuit Court judge to overrule that decision.
In his motion, defense attorney Frank Stanley asserted that burning the images onto a disc is merely a transference of data since Hill saved the images for his personal use only and was not involved in the original production.
The state’s prosecutor’s office, in its response, argued that Michigan law does not specifically state that an individual has to be the original maker of images to be charged with production, just that he or she must create images that previously did not exist. In other words, reproduction equals production in the eyes of the law.
Prosecutors also said they are exploring yet another possible avenue for charging Hill with production. Since he paid a monthly subscription fee to the illegal websites, they argued, he was in essence financing the production.
Preliminary hearings in the case begin scheduled for May 26, with trial scheduled to begin Aug. 23. Stanley has already said he will appeal the case to the Supreme Court, if necessary.
