Child-porn law being challenged

October 05, 2003
It may be a surprise to chronic Internet surfers that anyone in Arizona who clicks onto a child pornography Web site - even if nothing is downloaded - could wind up in prison.

While they do not condone the existence of child porn, some critics are questioning the fairness of Arizona's sentencing ranges for those convicted of possessing it. The state's anti-child porn law, which orders between 10 and 24 years on each conviction, is the most punitive in the country, according to a Phoenix attorney who is challenging the law.

Proponents of the Arizona law maintain the law is not intended or used to punish anyone for an innocent mistake. They say the law is tough because possessing or transmitting any child pornography is not only a serious crime, but also an indicator of more dangerous behavior.

"It is the toughest in the nation, no question about it," said attorney Jason Lamm, one of several Phoenix defense attorneys who have successfully obtained dismissals of child pornography charges in Maricopa County, though the criminal cases have since been reinstated by the Arizona Court of Appeals. Lamm and other lawyers are now seeking an opinion from the Arizona Supreme Court.

Lamm is asking for the dismissal of another case involving child pornography in Pima County, arguing as he did in the Phoenix cases that the law is vague, overly broad, and constitutes "cruel and unusual punishment."

Arizona's laws on crimes against children have long mandated harsh sentencing, said Kathleen Mayer, who prosecutes sex crimes for the Pima County Attorney's Office and applauds the fact that the state's laws make protecting children a priority. People who view child pornography are contributing to an extremely dangerous market that exploits infants and children by putting them in horrifying situations, she said.

"It's unreasonable to conclude that these people are not a danger to the community," said John Taylor, a criminal investigator with the Pima County Attorney's Office who is part of the local Sexual Assault Felony Enforcement - SAFE - team, which works full-time investigating sexual crimes committed using the Internet.

"Sexual predators used to be part of a closed society, but with the Internet they have perceived anonymity and they are able to find other people out there who validate their behavior," Taylor said.

Point, click, prison?

Critics argue that someone who possesses one or two pieces of child pornography could wind up spending more time in prison than someone convicted of second-degree murder or child molestation. They say the law against child porn, called sexual exploitation of a minor, was not written with the Internet in mind.

"Before, to get child porn you had to go to great and elaborate lengths," Lamm said. "Now you sit down at home, point and click and in a couple of seconds you've just racked up decades of potential prison time."

Case in point: Tucson native Phillip Gregory Speers, 31, a former Catholic schoolteacher, is serving a 34-year prison term for possessing two computer images of child pornography - 17 years for each conviction, which according to the current law must be served back to back. Speers' computer was seized after a girl in the second-grade class he taught made a claim of sexual misconduct against him.

By comparison, a Catholic priest in the Roman Catholic Diocese of Tucson who abused the children of working class Mexican families to whom he ministered was sentenced in July to 10 years in prison.

The Rev. Juan Guillen, former associate pastor at Immaculate Conception Catholic Church in Yuma, pleaded guilty to two counts of attempted child molestation after being charged with 13 felony charges related to four victims - all young men from Spanish-speaking families who attended his church, and whom prosecutors say the priest raped.

After his conviction in June of 2002, Speers was locked up in a maximum security prison reserved for serious offenders, since child pornography is classified by the state as a dangerous crime against children. Speers, who says he has never used child porn for sexual gratification, refused plea offers because he so strongly believed in his innocence.

In Phoenix, some defendants have been sent to prison for more than 200 years for child porn, said Lamm, citing the recent case of Phoenix high school teacher Morton Robert Berger, 51, who was sent to prison for 200 years for having child porn on his computer - a decade for each picture. In another case, Lamm is defending an 18-year-old with no criminal history who's facing up to 144 years in prison for accessing child porn through computer file sharing.

By comparison, Lamm recently defended a case of child pornography possession in Maine, where it's considered a misdemeanor and does not require jail or prison time.

"Knowingly" is key word

A study completed in June by the California-based Internet security firm Symantec Corp., found that more than 80 percent of the 1,000 youths it surveyed who use e-mail receive inappropriate spam on a daily basis. Forty-seven percent reported getting e-mails with links to X-rated Web sites. Most significantly, about one in every five kids open and read spam
e-mails, the survey said.

Taylor, the investigator, said someone who accidentally clicks on child pornography should call law enforcement. He regularly gets calls from computer repair businesses, for example. The law specifies the word "knowingly" when it comes to accessing child porn, he stressed.

The local SAFE team, which began with part-time investigators in 1999, has been getting busier each year investigating cases for both state and federal prosecution. Investigators are now full-time and say they are only just catching up to the huge number of children being exploited by people using the Internet.

"If we had 100 officers we'd be prosecuting people every day. We are barely scratching the surface on this," said Taylor, whose multiagency team typically recommends between 50 and 60 cases for prosecution each year.

Criticism of prison terms for child porn do not always take into account the context of the case, said Jefford Englander, a detective with the Pima County Sheriff's Department who works with Taylor on the SAFE team.

"It's a gateway activity that leads to sexual molestation of children," he said.

On Sept. 24, Speers' sentence was lengthened from 34 to 105 years in prison by Yuma County Superior Court Judge John Nelson. Nelson added 71 years for child molestation convictions.

Speers' Tucson attorney, Richard Bock, is appealing both the molestation and child pornography charges. Bock said that the images Speers was convicted of possessing were in temporary Internet files that are not saved by the user, but rather automatically saved by the computer. In other words, Bock said, Speers never downloaded the images, and there's no proof he knowingly accessed the Web sites containing names like Lolita and "sex hound" that investigators found in his computer's temporary files. Bock also pointed out that during the trial there was some debate as to whether the children in the images were actual children or whether they had been created electronically. The U.S. Supreme Court last year used that argument to strike down provisions of the 1996 federal anti-child porn law. Such issues pose new questions for judges hearing cases of sexual exploitation of a minor. Other questions for courts include whether temporary Internet files should be considered the same as downloaded images; whether the images in the photos depict minors or adults who are young in appearance; and whether clicking on an Internet site constitutes the same degree of culpability as other methods of obtaining child porn. "We're going into uncharted waters here," Lamm said.

Tell the kids
* Advice for parents to give to children to protect them from sexual predators:

• Never arrange a face-to-face meeting with someone you met online.
• Never upload pictures of themselves onto the Internet or an online service to people they do not personally know.
• Never give out identifying information such as name, home address, school name or phone number.
• Never download pictures from an unknown source as there is a chance they could include sexually explicit images.
• Never respond to messages or bulletin board postings that are suggestive, obscene, belligerent or harassing.
• Don't believe everything you are told online.
Source: U.S. Department of Justice and the FBI