Prosecuting a case under the Child Pornography Protection Act (CPPA) provides many difficulties.
(1) The statute does not have extra-territorial application, thus, can not be the basis of conviction for an offense occurring overseas. See United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).
(2) The prosecution must prove beyond a reasonable doubt that the child pornography involves real children -- in other words the images are not virtual images. See United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004).
(3) In the past, it appears that the CCPA may have required child pornography in three separate “matters” to be criminal. See United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000).
Since at least Sapp in 2000, it has been clear that child pornography may be prosecuted under Article 134 without reference to the CPPA if the Government can establish beyond a reasonable doubt that the child pornography is conduct prejudicial to good order and discipline (clause 1) or service discrediting (clause 2). There are advantages to charging child pornography under clause 1 or 2 rather than clause 3. Article 134 has extraterritorial application. Martinelli. Virtual child pornography, like actual child pornography, may be service discrediting or conduct prejudicial to good order and discipline. Mason. And the maximum term of confinement for an offense charged under clauses 1 or 2 is the same for similar offenses charged under the CPPA. United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007).
Despite the many advantages of charging child pornography under clause 1 or 2 of Article 134, it appears there are still many cases arriving at the service courts of criminal appeals and the CAAF in which a violation of the CCPA has been alleged. See, e.g., United States v. Boggs, NMCCA 200600984 (N-M. Ct. Crim. App. Jun. 20, 2007); United States v. Christy, ARMY 20050291 (A. Ct. Crim. App. Jun. 22, 2007); United States v. Nieland, Misc. Dkt. 2006-08 (A.F. Ct. Crim. App Jun. 25, 2007). Is there some advantage to doing so that I have missed? Are investigators citing to the CPPA in the reports of investigation and the charging officials just blindly following the investigators lead? Or are charging officials just not familiar with the case law?
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3 comments:
"Virtual child pornography, like actual child pornography, may be service discrediting or conduct prejudicial to good order and discipline. Mason."
It may well be, but nothing in Leonard suggests that the sentence for a violation of the CPPA would be available for virtual child pornography. To the contrary, Leonard seems to state with some care that the conduct and mens rea must be the same as a charged violation under the CPPA to warrant the same maximum punishment.
In summarizing the case law, I did not mean to imply that United States v. Leonard would permit imposing the same maximum punishment for possession of virtual child pornography as it would for possession of actual child pornography.
I was merely trying to say that Article 134 provides prosecutors with a more flexible tool for prosecuting child pornography because it reaches virtual child pornography, not just actual child pornography.
As I stated, United States v. Leonard says the maximum term of confinement for an offense charged under clause 1 or clause 2 is the same for similar offenses charged under the CPPA. Obviously, as virtual child pornography can't be charged under the CPPA, there was no intent to suggest that under United States v. Leonard the sentence for possession of virtual pornography would be the same as for actual pornography.
The reason that prosecutors are charging child porn cases under Clause 3 (CPPA) appears to be premised on sexual offender registration concerns. Apparently there are some that believe that Clause 1 and 2 violations involving child porn do not require registration. A conviction under clause 3, however, requires to offender to register as a sex offender.
That said, I'm not so sure that sexual offender registration is not required if a member is convicted of a clause 1 or 2 violation for possessing or distributing child porn. If trial counsel can get nearly the same sentence without having to prove the interstate commerce element, it seems that this may well be a suitable option.
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