미국 연방 정부가 발표한 보고서에 따르면, 1980년대 중반에 미국 내 아동 포르노 밀매는 연방 및 주 당국의 성공적인 캠페인을 통해 거의 근절되었습니다.
1980년대에는 아동 음란물을 제작하는 것이 어렵고 비용이 많이 들었지만, 컴퓨터와 인터넷의 발달로 아동 음란물을 입수, 복제, 보관하기가 쉬워졌습니다 형사전문변호사.
디지털 카메라와 이미지와 동영상을 인터넷에 게시할 수 있는 용이성과 국경이 없는 월드 와이드 웹이 결합되어 아동 포르노 배포자와 수집가가 불법 사진과 비디오를 쉽게 얻을 수 있게 되었습니다. 대부분의 사람들이 인터넷에 있는 방대한 양의 음란물에 대해 어느 정도 알고 있지만 국립 실종 및 착취 아동 센터(Nationwide Middle for Lacking & Exploited Youngsters)는 모든 인터넷 음란물의 20percent가 어린이와 관련이 있다고 추정했습니다.
법적으로 말하면, 인터넷에 있는 음란물의 20percent는 미국에서 소유하는 것이 불법입니다.
아동 포르노의 가용성이 증가한 결과 아동 포르노와 관련된 범죄에 대한 연방 및 주 유죄 판결이 증가했습니다. 최근 미국 법무부는 아동 음란물 근절을 위한 국가 전략을 발표했습니다. 이러한 노력에는 주정부가 정보를 공유할 수 있도록 하는 국유화된 데이터베이스와 아동 포르노 범죄를 기소하기 위해 미국 전역에서 38명의 보조 미국 검사를 고용하는 것이 포함됩니다.
아동 음란물 소지와 관련된 주 또는 연방 혐의로 이름과 평판이 망가진 사람의 뉴스 기사나 사진을 찾으려면 신문을 펴거나 텔레비전을 보기만 하면 됩니다.
아동 음란물을 생산하는 사람들에게 초점을 맞추는 대신 노력이 바뀌었고 법 집행 기관은 이제 아동 음란물을 소유한 사람들을 표적으로 삼고 있습니다. 일반 시민을 기소하는 데 도움을 주기 위해 연방 정부는 인터넷 검색 엔진과 협력하여 아동 포르노를 검색, 다운로드 및 소지한 사람들을 찾아냈습니다.
컴퓨터 범죄는 단순히 아동 음란물을 소지하거나 배포하는 것에 국한되지 않습니다.
많은 사람들은 법 집행 기관이 의심하지 않는 사람들을 불법적인 상황으로 유인하기 위해 컴퓨터를 사용하는 텔레비전 쇼를 보았습니다(예: NBC의 다큐멘터리, To Catch a Predator 등).
이러한 상황에서 법집행관은 미성년자로 위장하여 순진한 사람을 특정 장소로 유인합니다. 위치는 일반적으로 미성년자의 집으로 묘사됩니다. 불운한 사람이 미성년자의 집에 도착하면 텔레비전 카메라는 놀란 성인과 법 집행 기관 사이의 후속 대화를 녹화합니다.
때때로, 불행한 사람은 자신이 잠재적인 체포로부터 “말할 수 있을 것”이라고 믿거나 희망합니다. 그러나 그 사람이 한 진술은 기록되어 검사가 형사 소추의 근거로 사용할 가능성이 있습니다.
요컨대, 성범죄, 인터넷 범죄 및 컴퓨터 범죄는 전국적으로 주 및 연방 법 집행의 주요 초점입니다.
컴퓨터 검사
In any case involving a computer, it’s important to make use of a computer knowledgeable in any baby pornography case. Using such specialists might help set up a protection to the crime by exhibiting a few of the following:
• When an unlawful file was downloaded;
• Which computer program was used to obtain an unlawful file;
• Which computer person downloaded an unlawful file;
• Whether or not the unlawful file was positioned on the computer because of a computer virus;
• Whether or not the unlawful file was positioned on the computer by anyone “hacking” into an unsuspecting person’s computer, and;
• Whether or not the folks portrayed within the pictures and/or motion pictures are literally “kids” or fashions above the authorized age of consent who’re “posing” as a minor.
Sadly, most attorneys do not need enough data about computer expertise to even take into account using computer specialists. Most attorneys with out enough computer background merely consider that if baby pornography is discovered on a computer, the particular person is “responsible”.
Examples of Widespread Conditions
All through america, prosecutors can file number of completely different costs towards an individual for utilizing a computer for what might seem like authorized actions.
Three widespread examples are supplied:
Instance #1: A suspect seems to be for pornographic materials on the web and subsequently downloads each authorized and unlawful supplies (e.g., baby pornography, and many others.). The unlawful supplies really come from an internet site which is operated by the federal authorities for the only real objective of discovering and arresting individuals who obtain baby pornography. As soon as the unlawful supplies are downloaded from the legislation enforcement computer, a warrant is requested from a neighborhood court docket and the computer is seized and searched.
The particular person is arrested even when they did not know the supplies downloaded onto their computer had been unlawful.
Many individuals consider that if an internet site seems to be “reliable”, the supplies that come from that web site have to be authorized to own (e.g., footage, movies, and many others.); nevertheless, such an assumption just isn’t true.
As indicated, the federal authorities has arrange “reliable” wanting web sites which give baby pornography. The only objective of the web site is to lure an individual into committing unlawful acts (e.g., downloading an unlawful film and/or image, and many others.) after which arresting that particular person for downloading and possessing the unlawful merchandise supplied by the federal authorities.
Instance #2: Much like the instance above, a suspect makes use of a “peer-to-peer” file sharing program to obtain pornography (e.g., LimeWire, Bittorrent, BearShare, and many others.). Unbeknownst to the suspect, a few of the pornography downloaded is definitely child-pornography, and it comes from a computer owned and operated by legislation enforcement. As soon as the unlawful supplies are downloaded from the legislation enforcement computer onto the suspects computer, a warrant is requested from a neighborhood court docket and the computer is seized and searched.
One other instance is when legislation enforcement makes use of those self same “peer-to-peer” file sharing packages to “search” for unlawful child-pornography. As soon as legislation enforcement finds unlawful supplies, a computer program determines the TCP/IP tackle of the computer which homes the unlawful supplies. With the TCP/IP tackle, legislation enforcement can problem a warrant to find out the situation and tackle of the suspect computer. As soon as legislation enforcement is aware of the bodily location of the suspect computer, one other warrant is obtained permitting the search and seizure of the computer.
Instance #3: A suspect contacts an individual believed to be a minor via a chat room on the web. The minor is definitely legislation enforcement. By way of a number of conversations, the suspect is both inspired to ship bare footage, or, within the worst-case situation, the suspect is badgered into a private assembly with the minor solely to reach at a pre-arranged vacation spot and have law-enforcement ready to arrest the suspect.
The three examples are widespread conditions the place individuals are charged in both federal or state court docket, nevertheless, the examples supplied should not the one actions which may end up in legal costs.
Federal Fees regarding Little one Pornography
Federal legislation makes it against the law to own or distribute baby pornography. Particularly, Title 18, part 2252 and 2252A of america Code criminalizes possession or distribution of kid pornography.
Federal legislation defines baby pornography as any visible depiction (footage, video, knowledge saved on a computer, and many others.) which entails a minor engaged in sexually specific conduct.
Title 18, part 2256 of america Code comprises a number of definitions regarding crimes involving baby pornography; the next simplified definitions are supplied:
Minor: The time period “minor” as used within the federal legislation, means an individual underneath the age of 18.
Sexually Specific Conduct: The time period “sexually specific conduct” as used within the federal legislation, means any sexual act, together with materials which merely exhibits a baby’s genital space.
Visible Depiction: The time period “Visible Depiction” consists of movie, videotape, or different knowledge saved on a computer, or computerized knowledge or any knowledge capable of be transformed into an image or movie.
Though there are a number of completely different legal provisions of america Code regarding computer crimes, costs and penalties related to baby pornography are supplied:
Receiving or Distributing: If an individual receives or distributes baby pornography, that particular person is topic to imprisonment in a federal jail for a compulsory minimal sentence of 5 (5) years.
Title 18, U.S.C., § 2252(a)(2); § 2252A(a)(2) (2010).
Transporting: If an individual sends, offers or offers baby pornography to
one other particular person in any method, (e.g., through mail, e mail, any
electronic means, and many others.), that particular person is topic to imprisonment
in a federal jail for a compulsory minimal sentence of 5 (5) years.
Title 18, U.S.C., § 2252(a)(1); § 2252A(a)(1) (2010).
Possessing: If an individual possesses, in any method, baby pornography, that particular person is topic to imprisonment in a federal jail for no more than ten (10) years.
Title 18, U.S.C., § 2252A(a)(4)(b); § 2252A(5)(B) (2010).
In essence, federal legislation makes it against the law for any particular person to own supplies which show an individual underneath the age of 18 nude, genitals uncovered or engaged in any sexual exercise.
When representing an individual charged with against the law involving baby pornography, it is very important totally perceive the variations between the potential costs and the risk of incarceration for every.
Considerably, if an individual pleads or is convicted of against the law involving the possession of kid pornography, there isn’t a necessary minimal sentence; nevertheless, if an individual pleads or is convicted of receiving, distributing or transporting baby pornography, there’s a necessary minimal sentence of 5 (5) years imprisonment.
State Fees for Little one Pornography
In essence, all states makes it against the law to own footage or motion pictures which painting a baby’s genitals, pubic space or breasts (within the case of a feminine), if the kid is underneath a sure age.
Widespread examples of unlawful conduct are simple to picture (e.g., an individual possessing video tapes or footage of underage kids, and many others.); nevertheless, the statute additionally criminalizes the possession of digitalized pictures and flicks which might be saved on a computer or cellphone. As such, if an individual receives an unlawful image via e mail, and the particular person has a cellphone which receives e mail, an individual may very well be charged and convicted merely for unlawful gadgets by chance saved on their cellphone. Additional, with the growing recognition in mobile telephones that are able to taking footage and recording motion pictures, many extra individuals are at risk of legal costs for merely taking and saving unlawful footage.
Many state legal guidelines make it against the law for anyone to make an image or video which exhibits an individual underneath the age of 18 along with his or her genitals uncovered in any method or engaged in “sexually specific conduct”.
This consists of footage made with a cellphone or a digital camera.
Prosecutors in lots of states have used this statute to prosecute folks for merely downloading or copying pictures from the web after which saving these footage onto the hard-drive of a computer.
Restated, if you’re downloading pictures and/or motion pictures from the web after which saving these pictures and/or motion pictures in your computer, you could be charged in state court docket with the crime of producing baby pornography underneath the above statute.
Widespread Defenses in each State and Federal Courtroom
No matter whether or not legal costs are filed in state or federal court docket, there are lots of points which must be examined by an skilled legal protection lawyer aware of computer crimes.
The identical points come up whether or not the crime entails baby pornography, sex crime or common web crimes.
Though not restricted to the next, a number of widespread points which often come up are analyzed.
Figuring out possession
In each state and federal court docket, with the intention to be convicted of the crime “possession of kid pornography”, a defendant should knowingly possess baby pornography, that’s, the particular person charged will need to have data of the existence of the kid pornography.
This implies the federal government should show, past an affordable doubt, that the particular person accused had data of the existence of the kid pornography.
Giving a Statement
Many defendants mistakenly consider if an affordable clarification is supplied as to “why” baby pornography is on a computer, legal costs might be prevented.
Restated, many defendants consider that offering an sincere statement to legislation enforcement will assist keep away from being arrested or dealing with legal costs.
That isn’t true.
When a defendant offers a statement to legislation enforcement, the statement will possible be used towards the defendant throughout a legal prosecution.
A legal protection lawyer ought to try to suppress any statements given by a defendant which, in any approach, present a hyperlink between the defendant and any baby pornography discovered by legislation enforcement. A Movement to Suppress must be filed no matter whether or not the defendant was in custody when the statement was given.
Many individuals consider statements given by defendants cannot be suppressed if legislation enforcement offers Miranda warnings. That is additionally not true. An lawyer ought to try to suppress statements given by a defendant even when legislation enforcement offers Miranda warnings.
Latest case instance
In a single latest case, an older, married man was suspected of possessing baby pornography primarily based upon exercise to recognized web sites containing baby pornography. The gentleman lived along with his spouse within the suburb of a big metropolis and had lived in the identical neighborhood for years.
Regulation enforcement didn’t have sufficient proof to get a warrant to enter the suspect’s home and seize the computer. As a result of they could not get a warrant, legislation enforcement determined to stroll as much as the person’s home and discuss to him to see if they may acquire entry to the home voluntarily.
In arriving on the home, legislation enforcement waited till roughly 7:30 p.m., when it was darkish, and all of the folks within the neighborhood had been home. Three federal brokers and a few native police got here to the older man’s home. After convincing the person that they need to be allowed into the home, the authorities additionally satisfied the person they need to be allowed to “look at” the computer inside the home.
In brief, legislation enforcement coerced the gentleman to verbally present permission to look the computer. Regulation enforcement threatened to remain within the man’s home for a number of hours whereas they tried to get one other search warrant. Regulation enforcement additionally threatened to grab and take a number of gadgets which belonged to the person’s spouse.
The person believed if he didn’t give consent, a number of officers would arrive within the neighborhood with the lights on their patrol cars flashing, legislation enforcement would keep in the home for hours, search via all of his gadgets and his spouse’s gadgets, and finally take a number of issues which belonged to him and his spouse.
After a number of hours of badgering, and believing he had no different alternative, the person lastly admitted he might have downloaded baby pornography, supplied verbal consent and the computer was seized. Shortly thereafter, the person was federally indicted as a result of his computer contained baby pornography.
Within the above instance, an lawyer ought to problem whether or not the officers even had the best to go to the person’s home and discuss to the older gentleman. An lawyer also needs to problem the verbal consent and statement given by the older man on the idea the consent was coerced. Lastly, an lawyer ought to problem whether or not the officers had the best and authority to look at the computer as a result of the spouse didn’t give consent and each events had entry to the computer.
Preliminary Seizure of the Computer by Regulation Enforcement
In all legal instances involving a computer, it’s possible that legislation enforcement will seize the computer and subsequently carry out a forensic search of the computer.
Though all legislation enforcement has completely different procedures for an preliminary search and seizure of a suspected computer, an skilled legal protection lawyer ought to guarantee all procedures had been adopted correctly.
The failure of legislation enforcement to observe correct procedures in analyzing a computer for the presence of kid pornography can lead to costs being lowered or utterly dismissed in some instances.
Latest case instance
In a latest case, a defendant’s computer was seized and subsequently examined by a computer knowledgeable employed by native legislation enforcement. The knowledgeable reviewed the computer and located what was believed to be baby pornography.
When deposing the knowledgeable, attorneys found the knowledgeable didn’t observe procedures and protocol required by each federal and state legislation. As a result of the right process was not adopted, a number of motions had been filed and arguments had been made in court docket to have the costs dismissed. After a number of days of arguing, the prosecuting lawyer lastly agreed to a considerable discount of costs.
Latest case instance
In a single latest case, a computer was seized by an individual suspected of possessing baby pornography. A detailed examination of the computer and suspected baby pornography resulted within the discovery that the images believed to be “unlawful” had been downloaded from a business adult web site and the alleged “kids” had been adult fashions.
In that case, the house owners and creators of the web site had been contacted and data had been sought to reveal the folks throughout the footage had been really adults.
Figuring out who had entry to the Computer
In most households, a number of folks have entry to a computer. Generally, folks even enable pals, kinfolk and neighbors entry to a computer. We’ve got represented shoppers charged with crimes just because the particular person allowed different folks to make use of their computer.
In such instances, it is very important completely take into account all individuals who have had entry to a computer to find out attainable defenses. Such data is important in establishing the get together answerable for placing unlawful materials on a computer.
Latest case instance
A defendant was not too long ago charged with possession of kid pornography, nevertheless, the defendant lived with three (3) different folks. An in depth examination of the computer decided a lot of the unlawful supplies had been downloaded onto the computer between 8:00 a.m. and 5:00 p.m. in the course of the common work-week. As a result of the defendant labored an everyday job in the course of the day, employment data had been sought and finally, a major quantity of doubt was solid upon who, precisely was answerable for downloading the unlawful supplies, and the defendant accepted an excellent plea settlement which utterly prevented the risk of prolonged imprisonment.
Limewire and different “peer-to-peer” networks
Though many individuals use software program equivalent to Limewire for authorized functions, some folks obtain baby pornography utilizing such software program.
When an individual is dealing with costs which contain “peer-to-peer” networks, equivalent to Limewire, Kaza, and many others., an lawyer with technical data can shortly have a look at a computer to find out whether or not the fabric might have been downloaded “by chance.” Restated, an skilled lawyer can have a look at the style recordsdata had been downloaded onto a computer to find out whether or not an individual was deliberately looking for unlawful supplies equivalent to baby pornography or whether or not the particular person by chance downloaded baby pornography.
Keep in mind, the legislation requires an individual “knowingly” possess baby pornography. Possession of pornography involving adults just isn’t against the law. The federal government should show, past an affordable doubt, a defendant knowingly possessed the unlawful picture(s) and/or video(s) and the particular person charged will need to have purpose to know of its true content material and character (e.g., that the fabric is prohibited, and many others.).
As such, if an individual didn’t deliberately obtain baby pornography, it’s possible the particular person wouldn’t know the unlawful merchandise was positioned on their computer. An lawyer with computer data will look at a computer to find out whether or not unlawful recordsdata had been possible downloaded by chance.
Additional, skilled hackers can entry an individual’s computer via an web connection and retailer unlawful supplies on the computer of an unsuspecting particular person.
Restated, pedophiles with computer data can hack your computer and use your computer to retailer and entry their unlawful baby pornography with out concern of getting caught.
Use of Computer Specialists
As famous above, though it is very important have an lawyer who possesses vital computer data, additionally it is vital to have a computer knowledgeable in your workforce who can present testimony, if vital, to the technical points which come up when defending anyone charged with a computer crime.
Latest case instance
In a latest case, a defendant was charged with a number of counts of possession of kid pornography primarily based upon pictures and flicks discovered on his home computer. The defendant’s computer was seized by legislation enforcement and later searched by legislation enforcement when the computer was on the police station.
When deposing the cops who searched the Defendant’s computer and located the unlawful materials, I found the “knowledgeable” didn’t observe procedures and protocol required by each federal and state legislation.
Merely said, the cops didn’t observe the required technical procedures when looking for pornography on the Defendant’s computer.
Recognizing the issue, the consumer retained a computer knowledgeable who additionally reviewed the evaluation carried out by legislation enforcement. The knowledgeable wrote a report exhibiting the technical errors made by legislation enforcement, and the way these errors impacted the Defendant’s potential to determine a protection.
These errors had been the idea for protection motions to dismiss the costs for violation of the defendant’s constitutional rights. Finally, the prosecuting lawyer agreed to a considerable discount of costs.
Punishment in Federal Courtroom
If an individual is convicted of against the law involving a computer or the web in Federal Courtroom, the particular person will likely be sentenced primarily based upon the Federal Sentencing Pointers.
Though now not necessary, the Federal Sentencing Pointers is a compilation of written requirements which exist all throughout the nation to assist equalize sentences for related crimes. The Federal Sentencing Pointers (hereinafter “The Pointers”) present a framework for judges to observe when figuring out an applicable sentence for an offender. The Pointers assist be sure that an individual convicted of a federal crime in a single state receives an identical sentence to a different particular person convicted of the identical crime in one other state.
With respect to against the law involving baby pornography, the time period of imprisonment for a convicted defendant can enhance considerably primarily based upon elements outlined inside The Pointers.
The next enhancements might apply in a case involving baby pornography.
Prepubescent Minors: If the supplies discovered on a computer (e.g., footage and/or motion pictures, and many others.) contain a “prepubescent minor” (e.g., a minor who had not attained the age of 12 years), a rise within the sentence is warranted.
Use of a Computer: If a computer is used to entry, distribute and/or retailer the unlawful supplies, a rise within the sentence is warranted.
Sadomasochistic Conduct: Depictions of sadistic or masochistic conduct or different depictions of violence within the supplies requires a rise.
In keeping with latest federal selections within the problem, penetration of kids (in any method) qualifies as “sadomasochistic conduct” as a result of the courts consider compelled sex of a kid is painful and, as such, “sadomasochistic”.
Variety of Pictures: A rise within the sentence can be warranted if the variety of pictures positioned on a computer is greater than 10 pictures. A considerable enhance is warranted if there are motion pictures and/or movies positioned on a computer. One video counts as 75 pictures, and movies considerably longer than 5 minutes might require an upward departure.
In brief, after contemplating the entire elements which impression a possible sentence, it isn’t unusual for an individual convicted of possession of child-pornography in Federal Courtroom to have a mean sentence someplace between eight (8) and fifteen (15) years.
Enhancements exist in Federal Courtroom for each kind of computer crime, not simply possession of kid pornography.
Punishment in State Courtroom
As indicated, in each state, felony costs exist for sex crimes, web crimes and computer crimes.
As in Federal Courtroom, there are lots of elements which may impression a choose’s choice in imposing a sentence. An skilled lawyer will guarantee a Courtroom is conscious of all favorable elements earlier than a defendant is sentenced.
Conclusion
The recognition of computer systems and the web have made it simpler for folks to commit computer associated crimes. The results of legal costs associated to computer crimes can embody a prolonged time period of imprisonment. It’s crucial that an individual dealing with legal costs for computer crimes seek the advice of and retain an lawyer who has in-depth expertise and data about computer systems and different expertise. Continuously, it’s such data which offers the idea for a brief sentence or probation as in comparison with a prolonged sentence of imprisonment.