Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.
U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.
The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....
McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.
The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:
(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.
(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?
(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?
I don't know what the answers to these questions are, but the issue struck me as worth flagging.
By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse.
Related Posts (on one page):
- Law Enforcement Possession and Distribution of Contraband:
- Releasing Copies of Evidence = Violation of Federal Child Porn Laws?