In the US recording child pornography usually carries a larger penalty than raping a child. Imagine walking through the park at night with Google Glasses on, recording what you see. And there is a rape going on - congratulations, if you go and report it to the police, you "might" be put in jail for longer than the rapist. Unlikely? Maybe - but it's completely within the law.

Not only is that unlikely, but it's also false because the recording is inadvertent (and thus, the intent element of the criminal statute cannot be satisfied).

However, the intent element would be satisfied if you keep the recording without informing the police and giving them the recording ASAP. Furthermore, you would not be subject to a longer sentence than the original perpetrator, since the original perpetrator will almost certainly be subject to civil commitment statutes for sexual offenders that keep imprisoned indefinitely beyond his original sentence (Pedophilia is considered a mental disorder, and ephebophilia is also considered a mental disorder to a lesser extent, by the DSM 4.)

Source: I am a former criminal defense lawyer.

>(and thus, the intent element of the criminal statute cannot be satisfied). >Source: I am a former criminal defense lawyer.

You should know that statutory rape and child pornography criminal charges are unique in criminal law, in that they are strict liability crimes, and they do not require criminal intent.

In other words it is not enough that for a Defendant to claim lack of intent and prove the minor produced a ID showing they were 18 before having sex and/or before being photographed/filmed.

http://en.wikipedia.org/wiki/Strict_liability_%28criminal%29

Before you cite Wikipedia as a source,you should be aware that SR is one of very few unique exceptions to the intent requirement for criminal statutes. Also, the Wikipedia cite does not support your argument.

CP is not uniquely excepted -- you must have the intent to possess the content that is CP for it to be a crime. If some other person acquired CP and left it on your computer (for example, in a real case but not one of mine, a grandmother's computer was filled with CP left by her nephew was not guilty of possession of CP), you are not guilty of possession of CP. I won a case in Cali on these very grounds.

BUT...what I think you are referring to is that you do not need to intend for the content to be CP. That is, if you make a video which is, unbeknownst to you CP, the intent to possess that video is sufficient. In that regard, it CP possession is similar to SR in that it is "strict liability" with regard to one of the elements. However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police...and indeed, destruction of the video could be deemed destruction of evidence!

>Before you cite Wikipedia as a source

Are you serious? Look at your OP, your site was yourself:

>Source: I am a former criminal defense lawyer.

Additionally, your reply is regarding CP - to my post which was about SR. In another post I replied to a question about CP, in which I stated CP is not strict liability (unlike SR), that possession is a much more complex analysis than people think, and even noted the "blind eye doctrine".

>However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police

Speaking of citations...

In 2007 I wrote a draft Romeo and Juliet Law for the Florida Legislature (did not get passed), but it was presented at various CLEs. It was tailored to protect minors from ending up on the Sexual Offender List for life (among other post conviction punishments of minors). To that end minors are charged and convicted in Florida regularly for receiving unsolicited mass texts messages of other naked students in their school and the charges generally start with the student who whistleblows and sometimes ends with the victim charged. The facts are similar to your Park hypo where the possession was unintentional and the material is generally immediately turned over to authorities.

You better believe anyone turning in any video that includes a minor having sex, no matter how brief or unintentional, will immediately be read their Miranda rights and if a prosecutor with ice in their veins wants to charge you, they have the discretion and they will happily present evidence of a video that includes a minor having sex and evidence it was in your possession.

That is not the same thing as inadvertently recording a crime in a public place, which is what the grandparent was describing.

It is not the same thing but it demonstrates the same point that under these charges Criminal Intent does not need to be proved, unlike most any other criminal charge.

I suppose I did not need to use a different hypothetical, but I thought it would demonstrate the point about intent, bc in my hypothetical the Defendant could not have had intent when a minor produces an ID that says 18, ie. how can you intend to have sex with a minor if you believe the individual is 18? You can not intend it, at least legally and I specifically used a hypothetical that creates some culpability on the minor, producing a fake ID, but even that is not a defense because that only goes to intent, the actual crime still occurred.

Back to the original hypothetical, keep in mind we are not talking about recording a crime in a public place, it is much more specific we are talking about recording statutory rape in a public place - there is no defense regarding intent bc it is a strict liability crime. Moreover, it does not matter it was inadvertent, a mistake or anything else if the video exists and you recorded your intent, or lack thereof, is not a valid defense to a strict liability crimes.

Let me compare it to something else - let's say you have a charity collecting clothes. If somebody dropped a bag full of cocaine into one of your collection depos, and you called the police to say that this has happened, it is purely because of some little remains of common sense that you would not be charged with drugs possession. But under the letter of law, you could be.

If your camera records a rape of a child, then under the letter of law you are guilty of recording and possession of children pornography, no matter whatever you wanted to record it or not. Sure, most of the time judges will exhibit common sense about this, but it's a problem that if they wanted to, they could make you do jail time and it would be entirely within the law. Laws that are ambiguous and that can stretch depending how the police/judges see you,are the worst, it should be changed.

You know how things work in the "real world" of law, but for those of us that are not lawyers, these things are extremely scary.

Also, while the perpetrator might stay in jail longer in this hypothetical scenario, the fact that the other person might have a longer sentence is screwed up.

I don't live in the U.S., but I tried to be involved in politics in my country and have even sent a bill to our parliament :) (which is mothballed somewhere :P ).

I believe both the U.S. and my country would be better served by less laws and clearer ones (for cases such as this). In the U.S. Judges and juries seem to have more leeway, at least (as your example implies).

I read somewhere that possession of CP is like possession of cocaine - both are crimes purely because you have them, regardless of intent:

"possession of child pornography is a strict liability offense, like possession of cocaine, at least in the entire United States, as well as several other countries. Intent, mens rea, is irrelevant: if you have it and know you have it, no matter why, you're guilty."

But then, you are a lawyer,not me.

The first time I accidentally push down vote instead of up...Sorry.

>I read somewhere that possession of CP is like possession of cocaine - both are crimes purely because you have them, regardless of intent:

Possession of drug charges are not strict liability - in fact possession is actually a much greater legal analysis than one might think - for example, the are different types of possession legally (constructive or actual). Additionally, do not think you can beat the legal system by having someone else hide drugs in a vehicle and then you drive it not knowing you have possession, because there is a doctrine that prohibits someone from denying criminal intent under a willful blind eye (Willful Blind Eye Doctrine).

As noted above, you guys are both right (and wrong) regarding intent.

Intent applies to every material factor of the crime, for most crimes. Thus, for cocaine possession, you must (a) intend to possess the substance at issue, and (b) you must know the substance at issue is cocaine. If intent is not met for both of those factors (aka sub-elements), then intent has not been proven.

For SR, it's different. You must have intended to commit the sexual acts at issue. However, intent is not required as your knowledge of the age of the other party. In that sense, SR is strict liability. But note--many legal scholars and judges are of the opinion that SR as a strict liability crime is unconstitutional. For CP, the issue, as discussed in another comment, is similar--the intent to possess is a required element, but not knowledge that the possessed content is CP (though some states require intent as to both).

Please stop calling it child pornography. These are images of child sexual abuse.

Actually, I'd prefer it if people stopped spreading hateful lies about how acceptable images of child sexual abuse are, and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse; and if they stopped spreading FUD about how taking a photo of a man raping a child to give to the police would mean you'd be arrested, but I realise that apologists for paedophilia[1] are very vocal on the Internet.

> In the US recording child pornography usually carries a larger penalty than raping a child.

Do you have any citations for this? Specifically, a crime where a person has been given a longer sentence for recording images of child sexual abuse when that did not also involve carrying out the child sexual abuse?

[1] don't fucking dare try to start with the ephebophila nonsense.

>Please stop calling it child pornography. These are images of child sexual abuse.

Under the law, what is defined as "child pornography" extends far, far beyond actual images of child sexual abuse. A teenage girl taking a nude picture of herself in a suggestive pose, for example, is not a child being sexually abused. But the law still considers that child pornography.

>and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse

Can you show me one example of someone on HN (with an un-hellbanned account) claiming that child sexual abuse is harmless, or that producing non-simulated images depicting sexual abuse is fine?

Afraid I'm not following you.

What's the issue with using "child pornography" to denote "images of child sexual abuse"? It's not like child pornography has undergone some fluffy rebranding that makes people go "oh yeah that's cool!"

If anything, "child pornography" will probably set off a quicker, harsher reaction than "images of child sexual abuse." The latter is almost clinical in its approach: people will spend a couple seconds parsing it to try to figure out what it means, while child pornography evokes a very visceral, gut reaction. Using your preferred phrasing seems weird enough that, if not for your context, I might assume the user was trying to create a subcategory of child pornography that's real "child sexual abuse," implicitly also creating a complementary subcategory of some kind of legitimate child pornography that's somehow not abusive.

Obviously not what you're doing, so what's the motivation, here?

>don't fucking dare try to start with the ephebophila nonsense.

You sound like someone who spends a lot of time in the SRS bubble on reddit (I see this argument from them all the time). In that same vein I would just like to point out that its rather ironic that people who spend their time analyzing social issues to death in attempt to tease out nuance and increase understanding of complex issues (e.g. I've only ever heard the term cisgendered on reddit) would balk at an increased understanding of human sexual deviances. The fact is ephebophilia is clinically and socially distinct from pedophilia. Anyone who refuses to recognize the distinction is doing so for purely political reasons. Someone who would chastise one for using the term ephebophilia, while in the next sentence shove the term cisgendered down another's throat, seems absurdly self-serving.

If you want to complain about Reddit, could you please do it on Reddit?

I don't really see it as a complaint about reddit. I'm complaining about a sentiment that he seems to be supporting, which I've only ever seen on reddit. My response was informed by the assumed connection to reddit.

From primary school on, you must be aware that if you bring a problem to authorities like teachers or law enforcement, and you can be implicated in any way, that you are likely to personally pay for that even with the best intentions on your part

There you go, I am not making shit up as I go, but read articles in other places on the Internet too: http://falkvinge.net/2012/09/07/three-reasons-child-porn-mus...

The abuse carries harm. The images however,do not. If they did, how would it be legal(as it is) for me to download a video of two guys killing another one, stabbing him in the eyes and the throat with a screwdriver? This is also a video of a crime, yet one is legal and the other is not. I tend to agree with the article I linked here - it's because we(as a society) would rather make the very existence of information illegal, because it does not go well with our morals, and not because it's a logical thing to do. Ban on cp is actively(as in - right now) stopping predators and criminals from being caught.

Child porn is illegal because the desire for possession creates a market demand, and that demand gives reason for people to commit the abuse crime in the future. If nobody consumed child porn, there would be no reason to produce it – at least that is the theory. I'm not sure how we got to the point that possession is demonized more than the act though, as you are right, mere possession cannot really hurt anyone, though there is probably an argument to be made about the embarrassment one feels from being watched by strangers.

"Child porn is illegal because the desire for possession creates a market demand, and that demand gives reason for people to commit the abuse crime in the future"

That was the dubious argument made decades ago, when the only way to obtain pornography of any kind was to purchase it. In today's world, it is far more common for people to download child pornography without ever having paid for it. People are arrested for downloading such videos from peer to peer file sharing networks all the time, almost always without any evidence that they paid for it, knew who made it, or were in any way encouraging its production. Just having child pornography in your browser cache is sufficient to be charged in New York.

It is clear at this point that the purpose of child pornography law is not to protect children, but to punish adults regardless of whether children are involved. It is illegal to possess cartoon depictions of child pornography, even if you possess no other imagery:

http://io9.com/5272107/manga-collection-ruled-child-pornogra...

http://www.comicsalliance.com/2011/06/27/u-s-citizen-arreste...

Like most laws that increase police power, this has gotten completely out of control and put the public in danger.

I'm not sure how money plays into this. People create things for free all the time just because the are happy to know others are taking something from that work. See: Open source software, YouTube videos, comments on HN, to name a few.

You cannot talk about a market without talking about trade; in the original context of the law, money was traded for child pornography, and that was the entire justification. Open source, Youtube, and HN comments are not a market.

It is important to remember that child pornography is evidence of a crime. People do not send that evidence to others without receiving compensation of some sort; the knowledge that others are looking at the images is knowledge that they have evidence of the crime. The people who commit crimes against children are very secretive, and those who produce child pornography often go to great lengths to remain undetected. It is clear from what is known about online child pornography exchanges that trade of some kind is occurring, often serving a dual-role of compensation and of filtering out law enforcement officers.

That is the real issue: these people know that once their photos and videos spread around, the police will become aware of them. Rather than knowing that people enjoy their work, what the producers of child pornography know is that their work can lead to their arrest. They are exchanging it because they are receiving enough in return to justify such risks.

The original legal justification for the censorship of child pornography was to remove that compensation, since the police were having so much trouble locating child pornography producers. My point is that that justification is now badly in need of review, because the majority of people guilty of child pornography possession did not compensate the producers in any way. I have no problem with raids on forums where child pornography is exchanged quid pro quo; my problem is with raids on people suspected of downloading child pornography from peer to peer networks or third/fourth/fifth/etc. hand websites that are many levels removed from the producers. At the very least, prosecutors should be required to show that the imagery was paid for in some way, whether by barter or with money.

This is one of the best examples of how stupid these laws are that I have seen so far.

If that were the case, the why are simulated images also illegal?

As with most laws, the intent is usually lost along the way, leading to rulings that have nothing to do with the original reason for writing the law in the first place.

I have vague recollections of the case that decided that simulated images were legally equivalent to the real thing. It was a pretty hot topic at the time with a lot of debate going on. Had the people involved come with a different interpretation of the law at the time, I don't think it would be considered illegal today.

Possession of child porn is illegal in part because it gives the police a tool to compell possessors to help them find the creators--which is who they really want to catch.

Sorry, but this is an incredibly dumb argument(no personal offence meant). If you(or anybody else here) went on 4chan at the moment when somebody happened to post child porn, your very first reaction would be to wipe your history, so you could not be charged with possession, even though you did not want or meant to see these images. If just merely seeing them(so technically - downloading to your computer) were not a crime, more people would actually go out and report them to the police, which increases the chances of actually catching the producers of these materials.

And as it has been mentioned before - possession of CP was made a criminal offence back when the only way to get it was to pay for it. Nowadays, you can easily find it online, for free - without knowing who created it. So making it illegal is by no means helping anyone catch producers of child porn. It's not like making cp legal would suddenly make it ok to rape children.

You might think it is dumb, but it has repeatedly proven itself to be an effective tool for piercing criminal networks.

Police don't need people to report CP on 4chan--they can easily monitor 4chan themselves. (or any other public site)

It's useful when they find thousands of photos and videos that are recent and not publicly available, on a person's HD. Since possession is a crime, they can plea that person into turning over their supplier, then roll him too--hopefully traversing the network to find the person who is actually making the photos and videos.

Maybe,but it has also proven effective in putting people who are not child molesters in prison for child porn. They should be helped,not criminalized - it's people who actually harm children who should be put in jail for the rest of their lives. And years ago you could only buy it from others - and that's why this technique of making possession illegal is so effective against drug dealers. If possession of drugs is a crime,then you can always demand to know who is the dealer, from the person doing cocaine or whatever. The problem is,that this doesn't really work against cp - sure, maybe 20 years ago when to get it you had to buy physical pictures from some guys in a back alley it made sense. But what are you going to get nowadays? Hidden wiki's address? If you go on TOR there's tons of this stuff, and police cannot monitor it effectively,and cannot do anything about it, so it's unlikely that persecuting a person viewing this material is going to get them nearer the producer.

It also works against anonymous criminal networks, because the "turned" defendant can take actions that will result in the disclosure of the identity of the other anonymous participants. See: Sabu.