Child Pornography—Heightened Visibility

Child pornography is back in the news in a big way this week as John Mark Karr awaits interstate extradition back to California to stand trial.^[1] His case stems from State charges, but on the federal level, a professor at the Wharton School of Business in Philadelphia has been charged with possession of child pornography, and the managing editor of L’Observateur newspaper in LaPlace, Louisiana, has been arrested on similar charges.

Professor emeritus Lawrence Scott Ward was arrested Sunday morning At Dulles International Airport near Washington, DC “after he allegedly entered the country with videos of him engaged in sex acts with underage boys.”^[2] He was singled out for suspicion after having been “flagged in a sex-predator crackdown for having taken ‘excessive’ trips to Thailand,” which authorities consider a “haven for sex tourism.”^[3] Mr. Ward was returning from Brazil before he was arrested.^[4] Agents allegedly discovered three mini-DVDs showing Mr. Ward performing sex acts with boys “who appeared to be between 14 and 16 years old.”^[5]

The search of his luggage will almost assuredly be challenged.

The charges against the newspaper’s managing editor, Leonard P. Gray, stem from an internet chat “with an FBI agent posing as a 16-year-old girl.”^[6] According to an FBI affidavit, Mr. Gray was expecting to meet “cuttiemodelgurl” at a Starbucks coffee shop parking lot for a sexual encounter.^[7] The charges against Mr. Gray, however, do not relate to that alleged rendezvous, but rather, the chat sessions formed the basis of a search warrant on his home and computer, where the FBI “say[s] they found numerous images of children being sexually victimized.”^[8] He is scheduled to be arraigned on Thursday at 10 am, and he “remains in the custody of the US marshal’s service” in the meantime.^[9]

Child pornography charges are heavily fact-intensive prosecutions because of the nature of the statutes which address child pornography. To secure a conviction in a possession of child pornography case, the government must generally prove beyond a reasonable doubt that

• the defendant knowingly possessed books, magazines, or similar items which the defendant knew contained a visual depiction of a minor engaged in sexually explicit conduct;
• the defendant knew the visual depiction contained in the item was of a minor engaged in sexually explicit conduct;
• the defendant knew that production of the visual depiction involved the use of a minor in sexually explicit conduct; and
• the visual depiction had been either
  • transported in interstate or foreign commerce, or
  • produced using material shipped in interstate or foreign commerce.

As we have discussed before, there are a number of factual determinations to be made about whether the individual depicted is actually a minor, and whether the depiction is sexually explicit.

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[1] See Peter Fimrite, Sonoma County DA Pursuing 2001 Case, San Francisco Chronicle, Aug. 29, 2006.
[2] Robert Moran, Wharton Professor Accused of Child Porn, Philadelphia Inquirer, Aug. 29, 2006.
[3] Id.
[4] Id. See also, Will Bunch, Feds Bust Wharton Prof on Child-Porn Charges, Philadelphia Daily News, Aug. 29, 2006.
[5] Moran, supra note 2.
[6] Matt Scallan, Internet Chat Led to Journalist’s Arrest, Times-Picayune, Aug. 29, 2006.
[7] Id.
[8] Id.
[9] Id.