Sex crimes and internet crimes

Federal criminal law makes it a crime to distribute or possess digital images of minors engaged in sexual activity, an offense commonly known as possession of child pornography. According to this case, a person who is identified in the child in a child pornographic image may be considered a victim under 18 U.S.C. § 2259(a) which provided for restitution for victims. Here, the defendant was required to pay restitution for the harm caused to the then-child now adult, by the defendant having viewed the images on the theory that the victim suffers each time it is viewed.

The defendant was convicted of possessing more than 600 images of child pornography on his computer in violation of 18 U.S.C. §2255. The collection included an image of a child known as “Vicky” being subjected to unspeakable abuse at the hands of her own father. Now an adult, Vicky’s identity was confirmed through the N.C.M.E.C. data base, and the government informed her that her image had been found viewed by the defendant on his computer.

At the defendant’s sentencing, the government moved for restitution for Vicky, pursuant to 18 U.S.C. § 2259(a), for the cost of past psychological services and cost of future counseling and therapy. The government offered an expert on the impact of psychological trauma who diagnosed her with the following psychological disorders:
• Post traumatic stress disorder,
• dissociative disorder, and
• depression and
• “opined that Vicky’s knowledge that her images are being disseminated on the Internet causes Vicky to suffer a continuing trauma that he compared to an ongoing slow acid drip.”

The district court ordered restitution finding that she was a victim of the defendant’s possession of child pornography and that “Vicky suffers every time the child pornography containing her image is traded and viewed” and ordered that he pay Vicky $12,500 in restitution. The appellate court upheld the restitution order concluding that Vicky was a victim and that the defendant’s conduct contributed to the “proximate cause” of the victim’s harm. Each time the victim is notified by MCMEC that her image was found on someone’s computer, it exacerbates Vicky’s trauma and emotional distress.
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The computer sex crimes have been the focus of federal law enforcment due to the number of sexual predators using the internet to make contact with potential victims. In this case a Texas resident began an on-line relationship with a person whom he believed was the mother of an 11 year old girl. The mother expressed an interest to the defendant in having the defendant engage in sexual conduct with the daughter. The person posing as the mother turned out to be an undercover police officer. The 11 year old girl was fictitious.

The defendant had a non-jury trial before the district court judge. He was convicted. At sentencing the district court judge determined that the 30 year mandatory minimum sentence required by the statute (Adam Walsh Act) was in violation of the 8th Amendment as applied to this defendant who was a first offender, a husband, and a father of five.

Several issues were raised in this lengthy opinion.
• the appellate court rejected the argument that the prosecution infringed on the defendant’s right to free speech and
• that it was legally impossible for him to be guilty since there was no actual child.
• The court rejected the defendant’s claim that his post-Miranda statements should have been suppressed because his rights waiver was obtained by deceit (the officer told him that their questioning was regarding a national security/terrorism matter.)

Thirty-year mandatory sentence was not grossly disproportionate and not in violation of the Eighth Amendment. The appellate court reversed the district court’s ruling regarding the Constitutionality of the 30 year mandatory sentence. The court of appeals relied on Harmelin v. Michigan, 501 U.S. 957 (1991) which held that the 8th Amendment does not require strict proportionality between crime and sentence. It only forbids extreme sentences that are “grossly disproportionate” to the crime of conviction.
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Articles Posted in Sex crimes and internet crimes

Money may be awarded to an adult that appeared in child pornographic image; United States v. McDaniel

Free Speech does not protect an internet conversation involving an attempt to sexually molest a minor; United States v. Farley