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.
Society 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.

Oren: 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.

How does the DA’s offer of amnesty apply to federal prosecution?

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.

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.

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.

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.

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.

Bruce Hayden: It likely survives Strict Scrutiny because it is directed towards protecting children from exploitation, and has little to do with indecency.

Although applying it to circumstances where the filmer had nothing to do with the activity calls into question how narrowly tailored the statute is.

Bruce Hayden:
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.

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

Steve:

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.

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.

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.

Sherwin: 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?

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.

Oren: 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.

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.

ShelbyC:
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?

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

Steve: 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?

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?

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.

Thus ending a great show and a great run.