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.
gasman says:
But if the laws were meant to have exceptions for possession (to retain as evidence and transmit to the proper legal authorities) then why was it not simply written into the text of the law. Similarly, the prosecutor with his copies, duplicated, retransmitted within his office, shared with his staff have no special immunity because the law most certainly does not grant waiver of any kind to anyone.
November 3, 2009, 5:06 pmThe Volokh Conspiracy » Blog Archive » Common-Law Criminal Defenses says:
[...] commenter on the thread about photos of rape of a minor being child pornography asks, But if the laws were meant to have exceptions for possession (to retain as evidence and transmit [...]
November 3, 2009, 5:20 pmRandy says:
And Seinfeld fans know that he and the gang were arrested for filming the robbery of a fat man and doing nothing to come to his aid.
Thus ending a great show and a great run.
November 3, 2009, 5:22 pmSherwin says:
Thanks to US v. Stevens filming, then selling dog fighting activity (illegal in all 50 states) would be ok. Here, since the victim was a minor the matter is different…the sad question to ask is but what if she wasn’t, would it be ok to film her being raped?
November 3, 2009, 5:28 pmOren says:
The DA should come on the TV and make a 24-hour offer of amnesty on the CP charges for anyone that turns them in. Seems simple enough.
From a statutory perspective, many gun laws have an exception on the possession charges for anyone that finds a gun and brings it immediately to the nearest police station. I’m sure a similar thing would work in this instance.
November 3, 2009, 5:29 pmSteve says:
If something fits within the statutory definition of child pornography, but doesn’t constitute obscenity in the constitutional sense (no prurient interest, blah blah blah), does the defendant have a constitutional argument?
November 3, 2009, 6:24 pmShelbyC says:
Second the question, especially if the filming is for journalistic purposes.
I’d also question whether filming activity with which one has no connection satisfies the requirement that the production involve the “use” of a minor.
So many questions. If you have a security camera that you know is recording the activity, do you have to shut the camera off? Erase what it already recorded?
November 3, 2009, 6:50 pmGoobermunch says:
I think that New York v. Ferber covers that question. Child pornography is not protected under the first amendment, regardless of whether it is obscene.
–G
November 3, 2009, 7:01 pmMalvolio says:
Uh, why? The prosecutor doesn’t need the videos for evidence and it would certainly beneficial for everyone who was at the scene of the rape and used his phone to video the crime rather than to call the damn police to have a year in lock-up to consider whether that was the best choice.
November 3, 2009, 7:08 pmLaura(southernxyl) says:
I agree with Malvolio.
It’s too bad that it’s not really feasible to convict people of being wretched heartless sons-of-bitches. And then put them in the stocks, or something, with a sign up saying what they had done.
November 3, 2009, 7:12 pmSteve says:
I think that New York v. Ferber covers that question. Child pornography is not protected under the first amendment, regardless of whether it is obscene.
Kinda sorta, and I thank you for the cite. But as I read the case, it basically says that a child porn statute won’t be struck down merely because it might encompass constitutionally protected behavior in a rare situation. It doesn’t foreclose the possibility of an “as applied” challenge on First Amendment grounds. And none of the policy arguments in Ferber really apply to this situation. So maybe the answer to my question is yes, although it’s not a clear thing.
November 3, 2009, 7:16 pmBruce Hayden says:
I think though that the 1st Amdt. exception here is quite different. In the case of kiddie porn, it is to protect children, and I would suggest that that is a much stronger justification than any for indecency. It likely survives Strict Scrutiny because it is directed towards protecting children from exploitation, and has little to do with indecency.
November 3, 2009, 9:16 pmGoobermunch says:
I think though that the 1st Amdt. exception here is quite different. In the case of kiddie porn, it is to protect children, and I would suggest that that is a much stronger justification than any for indecency. It likely survives Strict Scrutiny because it is directed towards protecting children from exploitation, and has little to do with indecency.
That’s exactly the key take away from Ferber. As the Supreme Court itself noted: “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” As EV notes, the harm that child porn can cause is worsened by its distribution. In our modern networked society, if the rape is recorded, the danger that it will escape onto the Internet is immense, and the injury caused by the rape made that much worse. Given the nature of the State’s interest, it’s hard to see how a challenge to such one of these statutes could succeed.
–G
November 3, 2009, 9:27 pmSteve says:
You wouldn’t be challenging the statute, you’d simply be challenging its application in your particular case. I’m not suggesting all the child porn statutes need to be struck down simply because someone might videotape a rape for evidentiary use.
November 3, 2009, 9:36 pmShelbyC says:
Although applying it to circumstances where the filmer had nothing to do with the activity calls into question how narrowly tailored the statute is.
November 3, 2009, 9:52 pmOrder of the Coif says:
What if the person has a camera to record evidence but no telephone or no working telephone feature.
November 3, 2009, 10:03 pmDoes society want him to produce well-night conclusive evidence for the police or just to stand there silently watching (which I presume is not a crime). As long as the photos are not distributed and are turned over to the police with reasonable dispatch, the better public policy would seem to be NOT to discourage the preservation of this evidence.
Soronel Haetir says:
On the topic of prosecutors possessing the material, every statute of this nature I’ve seen does in fact contain an exception for police and prosecutors for law enforcement purposes. Just as they are allowed to possess all sorts of other properly documented contraband during the course of their duties.
November 3, 2009, 10:39 pmOren says:
He needs the evidence to nail down particular rapists.
Think about how difficult it’s going to be to prosecute this case. Every defendant will claim to be an audience member, not a rapist. The victim’s memory will be impeached based on her head injury. The camera is the only reliable witness.
November 4, 2009, 10:09 amNCBob says:
“What About Bystanders Who Photographed the Richmond Gang Rape?”
They shall be known as “journalists” and be able to sell their pictures to the highest bidder (unless the perps are of the wrong racial persuasion) and have their identities shielded.
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November 4, 2009, 2:21 pmohwilleke says:
Most crimes have an intent element.
In the federal statute the intent element is knowing possession or knowing access with intent to view. There is an argument, at least, that the intent of the Congress with regard to “knowing possession” really is “knowing possession with intent to view” perhaps despite the punctuation used. Even if this is an unlikely construction, it may be implied to protect constitutional interests that have been articulated in the adult obsenity cases. Just because the constitutional limitations on adult obsenity are not applied in equal measure to child obsenity doesn’t mean that some constitutional protection for legitimate use of this information (e.g. as evidence or to train CSI investigators) doesn’t exist.
The absence of limiting language in the California Penal Code alone doesn’t necessarily mean much, because there is probably a general part to that code (and quite possibly to subparts of that code) covering issues like justification and excuse, and new provisions like that one were probably adopted against a judicial gloss on prior provisions, perhaps interpreting contraband firearm, explosive and drug cases.
(The issue is a very old one in criminal law, by the way. The Roman empire in the late 300s had the equivalent of modern civil forfeiture laws related to possession of pagan worship implements once Christianity had not only be legalized as it was under Emperor Constantine in the early 300s, but was made the sole legal form of religious practice in the empire a couple of generations later. Its forfeiture laws elaborated at some length exceptions to a general rule of strict liability based on possession — to the extent that California’s codes have legal roots are in the Spanish civil law tradition rather than the common law tradition, they may even have standing as received precedents today.)
Imagine a security tape at a big box department store captures a child being raped outside its doors. If that tape is on film, there are 24 visual depictions per second of that child sexual activity in the possession of the store and its security officer, each chargeable as a separate felony offense in many states. Has that security officer committed a crime? Surely not.
Ditto the case of someone doing wildlife videography that catched an incident like this in the background with HD video and doesn’t even realize it was there until sitting down to edit the video, or someone who picks up the wrong briefcase at a restaurant and winds up with one full of child porn photos.
Similarly, merely receiving an unsolicited photo, without knowing what it contains until you receive it. This may be possession, but without knowledge, recklessness as to knowledge or even an affirmative act other than a generalized permission to receive photos, it probably doesn’t constitute an offense either.
The hard part is what duty of affirmative action arises when you have knowledge of possession. Photos themselves don’t automatically impart knowledge that the person depicted is a child, for example.
The analogy of the citizen’s arrest is also instructive. Normally, people are authorized to take actions that do not involve deadly force, that otherwise only law enforcement could take, when a crime is committed in your presence. The greater power to arrest may encompass the lesser power to preserve evidence.
Certainly, any justification evaporates once an image like this is republished with a caption like “look at what’s happening to drunk frosh Mary Jane, enjoy the view” to buddies, rather than someone in a position to take action. But, before then, requisite intent may be hard to establish.
November 4, 2009, 2:57 pmJosh says:
There was a case in Mississauga, Ontario where some teens raped a girl they knew and recorded the act. She was at a party and had been unconscious at the time of the rape. She didn’t even realize what had happened till she found out about it due to the perpetrators showing recordings of the act around the school.
The scumbags were charged not only with rape but also with the manufacture and possession of child pornography. Sadly Canadian judges are notoriously soft on rape and I am glad those involved in the Richmond High case are being tried as adults.
http://www.cbc.ca/canada/toronto/story/2007/03/07/assault-teen.html
The North American teen culture is being consumed with an overwhelming ignorance of consequences and lack of respect for other people. While this does not mean all or even most teens are caught up in this, it has been shown far too often lately that it clearly far too many.
November 8, 2009, 2:11 amDavid Hess says:
How does the DA’s offer of amnesty apply to federal prosecution?
November 8, 2009, 10:11 amAaron says:
The way the attackers were encouraged by the mob that included people who allegedly recorded the brutal rape and beating is a part of the same mentality that led to this horrific attack.
There are students who have threatened girls trying to find the recordings and pictures of the assault for evidence and some ignorant thugs have even said that if the accused go to jail they will harm her when she returns to the school.
Those who cheered the gang rape should be charged with aiding and abetting and those who recorded it should be charged with the production, possession and distribution of child pornography.
November 10, 2009, 1:04 pmSociety must have a zero tolerance for these attitudes and no stone should be left unturned to punish those involved and to drive home that a civilized society will not tolerate the violence or the thuggish mentality that created and condones it.