What About Bystanders Who Photographed the Richmond Gang Rape?

Some news accounts report that some bystanders “may have even filmed or photographed the attack.” Are they criminally liable, someone asked me?

Probably yes — for child pornography. California Penal Code § 311.11 provides (line breaks added),

Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip,

the production of which involves the use of a person under the age of 18 years,

knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4,

is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.

The federal child pornography statute, 18 U.S.C. §2252, would probably also apply, on the theory that the phone or camera was likely shipped in interstate commerce:

(a) Any person who—

(4)(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if–

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2252A(a)(5)(B) may also apply, and if the pictures were distributed to others, still more statutes might apply to.

Of course, the child pornography statutes weren’t enacted with this situation in mind. But one rationale for such statutes fully applies here: “First, the materials produced are a permanent record of the children’s participation [in the making of the child pornography] and the harm to the child is exacerbated by their circulation.” Certainly the taking of the pictures, and the accompanying risk that the pictures would be distributed still further, is a separate harm quite separate from the photographers’ failure to call the police (a failure that isn’t itself a crime in California).

I realize that such liability poses a potential problem when someone photographs a sexual assault on a child in order to get evidence that he could turn over to the police. But that problem arises in principle with child pornography law more broadly — if you see an illegal child pornography image and take it to turn it in to the police, you’ll be in possession of that image. But the federal statutes provide special defenses for similar situations, and I think a similar defense can be read into the California statute, perhaps under the “necessity” or “choice of evils” rubric, which California law recognizes. It makes more sense to recognize such a defense for the rare cases in which it’s appropriate, whether traditional child pornography cases or unusual cases such as this one, rather than just concluding — contrary, I think, to the text of the statute — that pictures of this particular sex act involving a minor aren’t child pornography.