On August 11 and November 22, 2006, U.S. District Judge Nancy Gertner from Massachusetts District Court confirmed a long standing U.S. precedent suggesting that to secure a conviction for child pornography, prosecutors must prove that the images are images of real- not virtual- children. The holding on this Massachusetts case centered on First Amendment rights. The Court on its November decision held that "The Government may not suppress lawful speech as the means to suppress unlawful speech.” Indeed, the Court further said, “The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”
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On August 11 and November 22, 2006, U.S. District Judge Nancy Gertner from Massachusetts District Court confirmed a long standing U.S. precedent suggesting that to secure a conviction for child pornography, prosecutors must prove that the images are images of real- not virtual- children. The holding on this Massachusetts case centered on First Amendment rights. The Court on its November decision held that "The Government may not suppress lawful speech as the means to suppress unlawful speech." Indeed, the Court further said, "The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted."
This Massachusetts case involved child pornography images discovered on defendant's (Rudy Fabrizio) work computer. Fabrizio"s employer reported this case to the authorities and child pornography charges were filed. The main issue in this case focused on the very technical issue of whether the found images were computer-generated or whether the images depectied 'real' children. The Government presented the opinion of two ‘experts' whose testimonies were not sufficient to prove the Government's case. The opinion of the first Government expert, a Dartmouth College professor of computer science who wrote a program on how to detect real images, did not succed because the defense proved that this program had a 30% error margin and could not provide an exact answer as required for criminal cases. The Government second testimony was offered for an indivudal that the Government claimed was an expert and could visually determine whether a sexually explicit image was of an adult or a minor. Regarding this testimony (he was not allowed to testify as an expert), the Judge said, "I have serious doubts as to whether a person visually studying the images in this case can distinguish real pictures from manipulated or wholly virtual ones with the level of confidence required in a criminal prosecution."
Since the wording of the current U.S. child pornography law only applies to images of ‘real' children, the Government in this case must have proved that the images at hand were images of real children. Photoshops and other available programs currently used permit creation of computer-generated pornographic images that under the law are not yet punished because they are still protected by the First Amendment freedom of speech. Thus, the Government lost this case for lack of expert testimony or extrensic evidence proving that the pornographic images depicted real children.
Thus, even though the U.S. Congress has been prompt to pass legislation against child pornography and internet related crimes, there is still a loophole that allow criminals to escape prosecution and this loophole is basically under the umbrella of the First Amendment of the U.S. Constitution.
Martha L. Arias, IBLS Director.
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