Calif. Bill Would Expand Illegal-Image Prosecutions

SACRAMENTO — Thursday’s ruling by Washington state justices on the prosecution of a man who had multiple child porn charges thrown out because the state law limits child porn charges to a single offense is just the opposite of what some legislators have in mind in California.

In the Washington state case, the high court upheld an appeals court ruling that requires the resentencing of Randy J. Sutherby on one count. Justices there ruled that those found with images of child porn can be prosecuted under state law only for a single offense per possession, not multiple counts based on the number of images or children.

But in California, a bill is wending through the state Legislature that would rewrite obscenity and child porn laws and provide more ammunition to prosecutors by treating each illegal image as a “distinct and separate offense.”

SB 203, sponsored by state Sen. Tom Harmon, was introduced in February and has reached several committees. A majority vote is required by the state Senate for the bill to pass.

Harmon and co-authoring legislators were unavailable to comment on SB 203 due to the Good Friday holiday.

ASACP’s CEO, Joan Irvine, told XBIZ that Harmon’s bill is reasonable when it comes to child porn.

“I agree that there should be separate charges for each individual child that has been victimized each time their images are possessed by an individual,” ASACP CEO Joan Irvine told XBIZ. “It only makes sense as the real crime has been committed against each child. If someone kills 20 people they are charged with 20 murders not one mass murder.”

Irvine, however, was bothered by some of “the implication and broadness of some of the [bill’s] language which appears to have nothing to do with child pornography.”

“For example, they consistently interchange the words child pornography and obscene matter,” she said. “It would be clearer if they consistently used ‘images of sexual child abuse’ or child pornography.

“I also didn’t understand their reasoning for why there was a distinction between commercial exploitation and just distribution since both are wrong,” she said. “They also define matter to include ‘a live or recorded telephone message’ if part of distribution. However, an image of sexual child abuse cannot be seen in a telephone message.”

“SB 203 includes some very confusing language regarding a distinction for a legally emancipated minor, the depiction of a person under the age of 18 engaged in the act of sexual conduct and the use of the phrase ‘deviant sexual group.’”

Attorney Jeffrey Douglas told XBIZ that much of the confusion with the language written into SB 203 lies with the way legislators initially wrote child porn laws.

"Unfortunately, given the history of the creation of child pornography laws in California, the same numbered statutes cover child pornography and obscenity, albeit in differently lettered subsections," said Douglas, who also is chair of the Free Speech Coalition.

"In what I assume is either a drafting error, or a result of the awkward structure of the Penal Code chapter, which covers both laws, the bill in its current form would increase punishment for distribution of obscenity, based upon the number of performers in the movie.

"That is, mildly put, irrational. I am confident that the problem will be cleared up during the routine committee process."