Recent Posts in crimes against children Category
| December 22, 2011 |
| Unlawful filming of another? What is this charge? |
| Posted By Shawn Cline |
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Like most states, Virginia makes it a crime to videotape or photograph an individual without their knowledge while they are naked or in some state of undress. While there are numerous exceptions to this rule, and it can be difficult for presecutors to prove, the penalties for conviction are quite severe. Virginia Code §18.2-386.1 makes it unlawful for any person to "knowingly and intentionally videotape, photograph, or film an nonconsenting person" where that person is nude, clothed only in underwear, or in a condition exposing genitals, buttocks, or the female breast. This law applies in a "restroom, dressing-room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location". For the law to apply, the person filmed must have a "reasonable expectation of privacy" at the time of filming. Violation of this statute is a Class 1 misdemeanor punishable by up to 12 months in jail and a fine of up to $2,500. However, if the person filmed or photographed is under 18 years of age, the charge is a Class 6 felony, punishable by up to 5 years in the penitentiary. Regardless of the degree, a third conviction will result in mandatory
sex offender registration.
Obviously, this is an extremely serious charge, but there is much to be done in defending this allegation. First and foremost, the filming must have been non-consensual at the time of filming for the statute to apply. Many people who are willing participants in videotaping of sexual acts have second thoughts later and wish they hadn't participated. But the issue is whether the individual was fine with being filmed at the time the film was taken, not whether they regretted it later. Secondly, if the person does not have a reasonable expectation of privacy this section does not apply. For example, a person intentionally exposing themselves in public who is photographed without their knowledge or consent while doing so is not protected by this statute; and those who photograph or film such acts are not subject to prosecution. Like any case involving photography or video, there is always an issue of proving who took the video, and whether that person did so "knowingly and intentionally".
The bottom line is that this is an exceedingly serious charge, and one that many people simply are not aware of. People think that they are free to videotape and record whatever they wish within their own homes, but this simply is not the case. With the proliferation of cell phones and computers that can produce clandestine recordings with relative ease, there is more and more of this sort of thing going on.
If you are facing this charge, you must contact an experienced criminal defense attorney. Do not delay, as much can be done in the initial stages to deal with this offense. Contact us today, we are here to help! |
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| September 16, 2011 |
| How bad are federal sentencing guidelines in child pornography cases? |
| Posted By Shawn Cline |
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This is kind of a loaded question, and the answer is "terrible". I'll explain why, but the take away from this posting is that if you are facing federal child pornography charges, your long-term liberty is at considerable risk.
Let's start by understanding sentencing guidelines. Felony sentencing in Virginia, and Class A misdemeanor and all felony sentencing in the federal courts, are handled through what are called "sentencing guidelines". Prior to 1995 in Virginia and prior to 1984 in the federal system, judges were bound only by statutory maximums and minimums in determining sentences. Since few charges carry mandatory minimums, judges had tremendous discretion in determining sentences. Judges could consider the nature of the offense and the offender's characteristics in deciding a sentence that suited the particular crime. This degree of judicial autonomy was a time honored part of our jurisprudence, dating back to the Magna Carta in England. This system wasn't perfect, and certainly some judges would treat the same offense differently then others, but it was generally accepted as the best option available.
This all changed with the implementation of federal sentencing guidelines in the Sentencing Reform Act of 1984. This act created the U.S. Sentencing Commission and mandated federal guidelines which would take into consideration aggravating and mitigating factors about the offense and the offender, and thereby produce a sentence range. Initially, these guidelines were mandatory, in other words, the judge could not divert upward or downward from the guidelines. However, the Supreme Court held in 2005 in
United States v. Booker that the guidelines were only discretionary, and that while they might provide guidance to the sentencing judge, he was able to depart from them in appropriate cases.
Today virtually ever state has some form of sentencing guidelines, and Virginia is no exception.
The basic premise is to create a more fair criminal justice system by fostering consistency and predictability in sentencing. However, in practical terms, sentencing in federal child pornography possession charges has become consistently outrageous and predictably draconian. I have handled child pornography cases in Virginia and federal courts, and have seen federal guidelines for the same child pornography possession offense calculated at as much as ten times the recommended state guidelines. I have also handled child pornography cases in military courts, where there are no sentencing guidelines at all. Interestingly enough, it has been my experience that military courts typically adjudge the most lenient sentences in these cases, perhaps because the court can consider all the aggravating and mitigating factors without being hamstrung by sentencing guidelines.
There is no question though that federal child pornography possession guidelines are the most severe.
Here's why: Federal sentencing guidelines were designed to be promulgated by the U.S. Sentencing Commission based upon data collected from previous sentences. In other words, the sentencing guidelines did not come directly from Congress, but rather from the Sentencing Commission which was chartered by Congress to produce carefully considered guidelines. However, largely as a result of political pressure, Congress has on numerous occasions directly amended the sentencing guidelines for possession of child pornography to make them considerably worse; all without considering input from the Sentencing Commission. Interestingly, possession of child pornography is the only offense for which Congress has directly amended the guidelines. All other guidelines have been promulgated by the Sentencing Commission, and not directly from Congress.
Predictably, Congress has taken the politically expedient route of making the guidelines for possession of child pornography unbelievably severe. So severe in fact, that in many cases the sentencing guidelines for simple possession of child pornography in the federal system are more severe than the guidelines for having actually engaged in the sexual abuse depicted in the pornography! This result defies belief, but it is a product of Congressional meddling in this complex field, as well as the morbid popularity of shows like "To Catch a Predator".
Here's what Congress has done: It has more than doubled the base offense level for possession of child pornography from 10 in 1991 to 22 in 2011. On top of that, they have added a 2 point increase for use of a computer (virtually all child pornography exchange today occurs online, so this almost always applies). They have added a 5 point increase for distributing images with the "expectation of something of value" (receiving an image from someone else on a peer to peer network qualifies for this increase, so this increase almost always applies). There is a 4 level increase for images depicting bondage or violence, and another 5 level increase for possession of more than 600 images. Because this material is now distributed primarily online, an individual can assemble a collection of more than 600 images in a matter of minutes, and almost invariably this collection will include images depicting bondage or violence, regardless of whether the individual is seeking this type of material. Further, the individual may not have ever viewed or even have been aware of the content of these images, he will still be accountable for these increases in offense level.
The result of this Congressional meddling is that most federal possession of child pornography cases will produce guidelines at or near the statutory maximum of 20 years.
Meanwhile, state guidelines remain considerably more reasonable, although much of that will depend upon how the prosecutor decides to charge the case. This is because each image can constitute a separate charge, so the prosecutor can decide how many charges he wishes to bring based upon the volume of the collection.
If you or someone you love is facing a possession of child pornography charge, contact us right away. Time is of the essence in developing a defense in these types of cases. We handle both state and federal child pornography cases, and are ready to defend you! |
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| July 12, 2011 |
| What are Virginia child abuse laws? |
| Posted By Shawn Cline |
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I frequently meet with distraught parents who have been charged with child neglect or abuse. In most cases, these are loving parents who either lacked the skills and resources to effectively care for their children; or in many cases these are parents being accused of something they simply did not do. These parents and guardians are confused and scared, so it is important first and foremost to have an understanding of the Virginia Code as it relates to child abuse and neglect. The good news is that I am going to go over much of it in this article. The bad news is that it is still terribly complex (as you will no doubt see). The bottom line is that if you are facing any charge in Virginia relating to abuse or neglect of a child, you need to contact us right away. That being said, here is the rundown:
The Commonwealth's Attorney always has the liberty to charge crimes against children under the general statutes; be it Murder in any degree, assault and battery,
malicious wounding, or any of a myriad of
sexual abuse charges. These types of charges are discussed elsewhere on this website, so I will not go into them further here. Instead, I want to focus on the types of charges that are specifically directed at abuse and neglect of children.
The most serious child abuse charge is under Virginia Code Section 18.2-371.1, Abuse and Neglect of Children. Within this code section are two different offenses, the more serious is a class 4 felony, carrying up to 10 years in the penitentiary. The lesser offense is a class 6 felony, carrying up to 5 years in the penitentiary. Both offenses require that the accused be the "parent, guardian, or other person responsible for the care of a child under the age of 18". So you can see one possible defense right there, if you do not fit that definition under the law, you cannot be convicted of either offense (although you may still be guilty of another offense, such as assault and battery). The code requires that the accused "willful act or omission or refusal to provide any necessary care... causes serious injury to the life or health of such child" to be guilty of the class 4 felony. The code defines "serious injury" as including, but not limited to "(1) disfigurement, (2) a fracture, (3) a severe burn or laceration, (4) mutilation, (5) maiming, (6) forced ingestion of dangerous substances, (7) life-threatening internal injuries." Unless the accused's act or failure to act directly causes one of these conditions or a comparable condition, they cannot be convicted of the class 4 felony.
That being said, the code allows for a lesser offense within the same statute for a class 6 felony. The code provides that any parent, guardian, etc. whose "willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life shall be guilty of a class 6 felony". As you can see, there is no actual injury required under this part of the code. As long as the responsible adult's conduct showed reckless disregard for the child's life, they can be convicted of this less severe (but still very serious) charge.
As you can see, there are two theories for conviction for both of these felony charges. One is a specific act, the other is a failure to act. In other words, it is not always a defense to say "I didn't do anything". The idea is that a responsible adult has an obligation to act under certain circumstances. Doing nothing is sometimes not acceptable. A good way of looking at this would be to think of a firearm in the home. A responsible parent ought to secure firearms in the home, particularly where the children are of an age where they may be curious but not yet capable of understanding the consequences of using a firearm. For this reason, a parent might be charged under one of these statutes for failure to secure a firearm if the result of such failure was the death of a third party at the hands of an armed child. This is just an example, and should not be considered as controlling or limiting in any way.
Cases involving neglect and abuse of children are not always felonies. In fact, in most child abuse and neglect cases emerge as misdemeanors. Code Section 18.2-371 is the basic Contributing to the Delinquency of a Minor statute in Virginia. This statute makes it a class 1 misdemeanor, punishable by up to 12 months in jail, for any person over 18 years of age who "willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected". This is still a serious offense, but far less serious than the felonies discussed previously. These cases typically involve a lack of supervision, or perhaps even active facilitation, on the part of an adult which causes a child to engage in illegal or dangerous conduct. These cases often involve allowing minors access to drugs or alcohol.
There is a final way in which these types of charges can be brought in Virginia, although it is rarely used. Within the Child Labor section of the code is Section 40.1-103, which prohibits any "person employing or having custody" of a child causing or permitting the life of the child to be endangered or the health of the child to be injured. Violation of this section is a class 6 felony, punishable by up to 5 years in prison. This is an unusual charge, given that it falls under the child labor prohibitions, but it is brought from time to time.
As you can see, there are a myriad of ways that Virginians can be charged with abuse or neglect of a child. These cases are exceedingly difficult, because invariably the parents or guardians love their children and the best for them. If you are facing these types of charges, do not wait... contact us right away. We are here to help!
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| June 20, 2011 |
| What are the possible penalties for child pornography charges? |
| Posted By Shawn Cline |
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Possession and distribution of child pornography are some of the most common felony charges that I deal with. Almost without exception, the individual was caught as part of a "catch a predator" type of sting, conducted by either federal or state law enforcement. Depending on the facts of the case, there is much that can be done to defend cases like these, particularly where the individual has not made a confession to law enforcement. When these stings are conducted, the law enforcement officers cannot see the subject of the sting, after all, the police are sitting on a computer somewhere far away from the subject of their investigation. Police rely on subpoenas for information such as the IP address of the subject computer, as well as the name of the host internet provider to attempt to identify who was using the computer when the alleged conduct took place.
These cases are extremely complex, and you must hire an attorney who understands computer forensics. Many very good lawyers are ill-suited to handle a child pornography case, simply because they do not understand the principles behind peer-to-peer networks, which are the primary means of transfer and receipt of child pornography in the internet age. But one thing is not complicated: the potential punishments for child pornography offenses. They are extremely harsh, across the board. Let's take a look.
It may seem patently unfair, but there is a tremendous difference between how child pornography charges are punished in the state versus federal systems. In Virginia, possession of child pornography under 18.2-374.1:1 is a Class 6 Felony, punishable by up to 5 years in the penitentiary. That sounds bad, and it is, but it's even worse when you consider that the Commonwealth's attorney can allege every image as a separate charge! It doesn't take long before the charges add up to a considerable amount of prison time. That being said, it is typical in Virginia to have an actual sentence significantly lower than the maximum punishment, with some portion of the total sentence suspended based upon compliance with judicial orders following release from prison.
As bad as that is, the federal system is far worse. There are several federal statues involving child pornography, but the most common is 18 U.S.C. 2252. This statute carries a possible 20 year sentence for a single count. The difference between the state and federal system is that a single federal count may actually result in a sentence approaching the maximum penalty! The reason for this is that the federal system's sentencing guidelines are typically much more severe than the state system. It is not unusual for an individual's sentencing guidelines in the federal system to come in at three or four times what they would be for the exact same child pornography offense in the state system. I get a lot of questions from clients in both systems wondering why the penalty ranges are so vastly different. I don't have a good answer for this, and frankly it is patently unfair that one defendant gets a sentence drastically longer than the other, simply by having the misfortune of being prosecuted in federal versus state court.
That being said, there are tactical decisions to be made when facing trial in the state court, simply based on the possibility that the feds may take interest in an ongoing state case, and simply take the matter over. This happens quite often, believe it or not, and when it does things have quickly gone from bad to way worse.
The bottom line is that possession and distribution of child pornography are some of the most serious charges you can face in Virginia. You must have an attorney who can handle these charges in both state and federal court, and has done so before. Computer forensics is a complicated field, and most attorneys don't know a thing about peer-to peer networks and the means by which these images are distributed today. Call an attorney who does, and who is ready to fight for you! |
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| April 15, 2011 |
| Child Pornography "To Catch a Predator" Stings |
| Posted By Shawn Cline |
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There was a time when possession and distribution of child pornography was rarely prosecuted because child pornography was part of a secretive sub-culture that dealt in the mailing of actual images of child pornography, often produced in Eastern Europe, to consumers willing to pay top dollar in the United States and elsewhere. There was also a time when people bought CD's at the mall. But the internet changed all that. Suddenly what you used to have to pay good money for became easily accessible and free via the world wide web. As a consequence of technology, many people who would never have had access to child pornography before the advent of the internet found themselves easily accessing it through their home computer.
But if you are doing this, you are going to get caught. Here's how:
Most internet exchange of child pornography occurs through what are called "peer to peer" networks. Peer to peer originated with the now defunct "Napster" network, and has developed through the years to Limewire, Kazaa, Gnutella, and countless others. These networks involve the sharing of digital media (songs, movies, etc.) through the internet. Membership in a peer to peer network requires a user to create what is called a "shared file" on their computer. A shared file is where the peer to peer user makes available some of their own computer files so that other users on the network can download the files to their own computer through the network. In exchange for making your files available for download, you can download a proportional amount of files from other users on the same network. This seems like a harmless arrangement, but there are serious problems with it in terms of your expectation of privacy.
Think of it like this: if you are smoking marijuana in your front yard and a police officer walks by and sees what you are doing, he can arrest you. You have no expectation of privacy in your front yard, so the officer can take action for what he sees you doing in such an open manner. However, if you smoke marijuana in your basement and the officer walks by, he (a) won't know what you are doing, and (b) even if he does, he still needs a warrant to mess with you. That is because you DO have an expectation of privacy in your basement.
Let's return to the peer to peer situation. If you are at home on your computer looking at files on your internal media, like the hard drive, you have an expectation of privacy. Law enforcement can't look into your hard drive without a warrant. But if you place files into the shared drive, then everyone who can download them (i.e. anyone on the peer to peer network), can see them! So you have no expectation of privacy.
Here's where it gets interesting. Every image on the internet (yes, every image), has a unique "hash value". That picture you just posted on facebook? It has a unique hash value. Well, so does every picture of child porn on the internet. You can rename images all day long, but the hash value NEVER CHANGES. The police aren't stupid. They know the hash values of hundreds, if not thousands of known images of child pornography. All they do is run massive searches for hash values of known images of child pornography through the shared files of peer to peer networks looking for matches. When they find matches, they identify the IP address (unique to the computer) of the user, and get a warrant. Then they come to your house, seize all electronic media, and arrest you.
So you see, it is exceedingly easy to get caught if you are looking at child pornography. It is a virtual certainty. But if it has happened to you, or someone you love, contact us immediately! The stakes are high, and you must hire an attorney who understands this complex area of criminal defense, and is ready to fight for you! |
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| March 28, 2011 |
| Internet Solication of a Minor |
| Posted By Shawn Cline |
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Given the popularity of shows like "To Catch a Predator", many state and federal law enforcement agencies have stepped up efforts to catch individuals who may be using computer chat rooms and other internet media to solicit minors to engage in various sexual acts for liaisons. Police officers will enter these chat rooms and websites posing as children for the purpose of catching individuals who are seeking to contact children. These police officers are not required to identify themselves, even if asked to do so, and frequently will set up meetings wherein the adult on the other end thinks he is going to meet with the child, but instead walks into a police sting.
In Virginia, soliciting a minor over the internet is a felony, with maximum punishments ranging from 5 to 40 years in the penitentiary, depending upon how the Commonwealth's Attorney decides to charge the case. In addition, any such conviction will result in registration as a sex offender.
If you or someone you know has been charged with this offense, you must contact an aggressive criminal lawyer right away. Time lost is opportunity lost, and you need an attorney who is ready to assist you in fighting this serious charge. Contact us right away, we are here to help! |
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