Child Porn and the Personal Injury Bar
My first instinct was to shrug the call off, to regard it as unnecessary alarmism. But the caller was a lawyer I respect, and would turn to in a heartbeat if a family member were injured. I told him I would mull the matter overnight and then get back to him.
Were the pictures in his possession child pornography? Dare he send them to his adversary in a dog bite case?
A young girl, about 12 years old, was mauled by a pit bull. The dog tore at her breast and left garish scars on her buttocks. The caller had photographs of the fresh injuries. He wanted to use them as part of settlement negotiations.
It was obvious to me that the pictures were created for a legitimate purpose, and that the caller had no lascivious intent. But possession, and distribution, of child pornography is not a specific intent crime. Knowing possession of prohibited images is enough to land you in prison.
Were the images prohibited?
Child pornography cases are brutal. The images on the market never fail to disturb. Not only do some get gratification from the sexual abuse, some are gratified in ways only the devil can understand by the sight of children suffering. I will remain forever marred by the first image I viewed in defense of a case: the look of terror on the child's face haunts me 20 years later.
Connecticut law includes the following definition of prohibited images: "actual or simulated … sadistic or masochistic abuse." These pictures of a mauled child would be a turn-on in some dark corners of the world.
On reflection, I concluded the possessor of these images was, potentially, at risk of state and federal prosecution.
I agreed to call the U.S. Attorney's Office to ask for an opinion, keeping the name of the possessor of the pictures confidential. I spoke to two prosecutors. Both agreed the images could be regarded as problematic.
But don't the photographs have a legitimate use? They do. A picture is worth a thousand words, we repeat. And wouldn't a picture be preferable in any litigation to having the child herself shed her clothing to show a fact finder her scars?
Life is risk, savvy lawyers know. How best to manage the risk that these pictures not fall into foul use?
The prosecutors advised that under no circumstances should the images be sent via the Internet to anyone. It is too easy for items in the electronic ether to find their way into the wrong hands.
The preferred course is to keep these images under lock and key, to be able to account for their provenance, and then to show them, but not give them, to an adversary under controlled circumstances. Make folks sign a log that the photos were viewed on such and such a date. Destroy them once the litigation ends.
It all seems vaguely ridiculous, these precautions. But when a prosecutor pauses to consider whether a scenario can yield prosecution, wary lawyers ought to pause. If it can be prosecuted, somewhere, sometime, someone will prosecute.
So I pass this along as a cautionary tale for those of you who have occasion to generate pictures of injured children. There is a market in twisted suffering. Don't become part of it. When in doubt, call a criminal defense lawyer. Treat the photographs as an infection to be managed.
All this, of course, begs the question my caller has yet to confront: Suppose the case of this injured child must be tried. What then? Do you offer these pictures into evidence in open court? What liability might that yield?
Those are questions for a different day. It is enough, at present, to spot the issue.
Read more: http://www.ctlawtribune.com/id=1202735280914/Norm-Pattis-Lawyers-Dog-Bite-Photos-Raise-Child-Porn-Concerns#ixzz3jOMQPYpj