Monday, October 31, 2011

If Your Office Allows You to Open This, Enjoy!

People ask fairly often how I can sleep at night.  Sometimes they ask a different question with the same tone, like “So, how do you defend criminals when you know they are guilty?”  Or some variation thereof.
The truth is that I sleep very well.  And I love my job.
Recently I got a child porn case dismissed.  Erased.  Like it never happened.  It was a felony case wherein the Defendant was facing years in prison and the obligation of registering as a sex offender for life.  But I got it dismissed.  And I walked out of that courtroom with a smile on my face like it was Christmas morning.  The defendant was charged with distributing matter portraying a minor in a sexual performance.  The “matter” was a picture of a nude 14 year old girl.
Before the villagers start chasing me with pitchforks and torches,* let me explain.  The Defendant was the 14 year old girl.  She was charged with distributing child porn which portrayed herself.  She, in the parlance of our judicial system, was the alleged perpetrator AND the victim. 
Let’s call her Amiey.  Because for some reason new parents these days always have to intentionally misspell their children’s names.  Amiey is 14 years old and she dates a boy who is 16 years old.  We will refer to him as “standard teenage boy.”
Amiey is in “love” with standard teenage boy.  His birthday approaches, so Amiey goes on the internets and tries to find out what teenage boys like.  After some extremely brief research she learns that teenage boys have a one track mind.  She decides that she is going to give standard teenage boy a present for his birthday – a picture of her breasts.
Obviously, this is a horrible decision. 
After sending the picture message to his phone, Amiey can never undo what has been done.  Now, a digital image of her underage, naked body is out there for the world to see.  Further, the simple act of receiving and keeping the image on his phone makes standard teenage boy a felon, as well.  He is now in possession of child pornography.  Every person he sends the picture to will also be in possession of child pornography.  And every person they send it to.  A ripple effect of registerable sex offenders.
Inevitably, standard teenage boy’s grandmother finds the picture on his phone and goes apey.  She calls the County Attorney and asks for them to bring charges against Amiey.
After giving a very thorough lecture to her daughter, Amiey’s mother calls me.  In my office, I explain that the Kentucky law on distributing child pornography is governed by KRS 531.340.  It says, in pertinent parts:
(1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she:

(a) Sends or causes to be sent into this state for sale or distribution; or

(c) In this state, he or she:

2. Distributes; or
4. Has in his or her possession with intent to distribute, any matter portraying a sexual performance by a minor.

(3) Distribution of matter portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

In order to know what was distributed, first we have to define “sexual performance.”  Which will require us to define “performance,” “sexual conduct by a minor,” and “obscene.”  Here are the important definitions, pursuant to KRS 530.300:
(3) "Obscene" means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors;
(4) "Sexual conduct by a minor" means:
(a) Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
(b) Physical contact with, or willful or intentional exhibition of the genitals;
(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or
(d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family;
(5) "Performance" means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;
(6) "Sexual performance" means any performance or part thereof which includes sexual conduct by a minor; and

The basic defense was that 1) a picture of Amiey’s breasts did not constitute “sexual conduct by a minor” because, pursuant to KRS 530.300(4)(d), the exposure of her breasts alone would not be considered “obscene” under the definition of KRS 530.300(3).  Exposure of the breasts alone (without some other sort of sexual behavior) would not be “sexual conduct.”  And 2) I would make a motion to dismiss the case, on the grounds that the law, as applied to Amiey, was inapplicable.  There is some caselaw (specifically In re G.T., 758 A.2d 301 (Vt. 2000) which supports the idea that statutes relating to sexual victimization of children should be construed so narrowly as not applicable to minors accused of sexually-based crimes involving other minors.  Since Amiey was the “victim” she should not be prosecuted as a perpetrator under the same statute that makes her the victim.
After I squawked this noise at the prosecutor long enough, he just said ok, and agreed to dismiss the case if Amiey wrote a paper on why sending nude pics of herself was a bad idea.  I don't know if he genuinely believed that the outcome was fair, or if he was just annoyed with me and the reasonable probability that I was going to make him do a lot more work over the holiday months if he didn't cave.
Either way, I thought it was a very good outcome.

I slept very well that night.
If you have been charged with a sex crime, you need a good lawyer.  Many Kentucky sex crimes carry penalties including years in prison and registration as a life long sex offender.  Call an experienced Louisville sex crimes lawyer at Gruner & Simms, PLLC.  The initial consultation is free, so call 502.618.4949 today.

Results.  As fast as the law will allow.
*Get it?  I’m a monster.

Questions answered in this blog post:  What is the law on Kentucky child pornography; what age is ok for pornography; what is distributing matter portraying a minor in sexual performance; how can I find a good Louisville child pornography lawyer; how can I find a good Kentucky child pornography lawyer; how can I find a good Louisville sex crimes lawyer; define "obscene" under Kentucky law; define "sexual conduct by a minor" under Kentucky law; can an underage girl who sends nude pictures of herself be charged with distributing child pornography?

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