US Attorney: McDade violated the law.

From the AJC:

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. Attorney in Atlanta said Wednesday.

U.S. Attorney David Nahmias said in a statement that federal law prohibits the distribution of the Genarlow Wilson videotape because it depicts minors engaged in sexually explicit conduct. He warned that people who had received it would be in violation of federal child pornography laws

Federal law prohibits the distribution, receipt and possession of child pornography in most circumstances, Nahmias said.

“These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain,” Nahmias said.

“Accordingly, we have advised that the videotape at issue constitutes child pornography under federal law and should not be knowingly distributed, received, or possessed outside of law enforcement and judicial proceedings.”

McDade told the Associated Press that he was required to release the tape under the state’s Open Records Act because it was introduced as evidence at the trial.

Nahmias, though, said federal law trumps any contrary requirement of the open records law.

15 comments

  1. Romegaguy says:

    So if a legislator was given a copy of this video and decided to show it to another group of legislators…

  2. Icarus says:

    So if a legislator was given a copy of this video and decided to show it to another group of legislators

  3. The Comma Guy says:

    Would any of the jurors be in trouble for having viewed such tapes?

    And before folks go after McDade, consider the holding of Alexander Props. Group, Inc. v. Doe, 280 Ga. 306 (2006):

    Plaintiff mother of a minor sexual assault victim brought a premises liability action against defendant manager of the apartment complex where the assault took place. On the basis of O.C.G.A.

  4. CHelf says:

    What are the laws against those who view child pornography? This puts a certain Senate leader in an awkward position does it not?

  5. Sarawara says:

    I doubt merely having viewed child pornography is prosecutable in GA. Last month the Ct. of Appeals overturned a conviction in a case in which child porn pics were found in the defendant’s computer cache, because there was no evidence that he had affirmatively saved the pictures on his computer or that he could access them again if he wanted to. Having merely viewed the images but not saved them was not enough to constitute the knowing posession required under the statute. The decision isn’t online anywhere that I can find but here’s an article about it:

    http://www.law.com/jsp/article.jsp?id=1182848790153

    I’m thinking that anyone who has a copy of the tape sitting around their house or office might have a problem, however.

  6. John Konop says:

    Does anyone buy that a District Attorney David McDade should have released a video tape of minors having sex? And if D.A. McDade truly thought the girl was a victim or not was it not cruel of him to give the tape to the media? Who showed worse judgment an adult attorney releasing a tape of a minor having sex or Wilson the 17 year old who had consensual relationship with a minor? Also who should have a stiffer penalty?

  7. John Konop says:

    Erick,

    You were so outraged by Wilson you wanted him taking out before the trial. Are you outraged by the white adult prosecutor who released the video of the minors having sex? How cruel was that for the girl?

  8. mr. winston says:

    What if the tape only included the part where Genarlow and his buddies were going reverse cowboy on the 18 y/o female who was passed out? They’re all adults right? Hypothetically, would it have been illegal then?

  9. Rogue109 says:

    Comma Guy:

    It would seem that the holding in the Doe case is that McDade is not liable if it is requested as part of a civil case. That doesn’t seem to be the situation here…he’s giving them to legislators who request them and to Fox5 for a story.

    I’d love to defend McDade more, but it *seems* at this juncture he may indeed be in the wrong. It will be interesting to see how this plays out…

  10. John Konop says:

    Mr. Winton

    What you are doing is writing about a tape that it seems was about minors having sex you may have seen. The jury did see the tape and had a different conclusion.

    The reason victim laws for rape cases were put in place are to stop what you are doing. I am not a lawyer but I would I hope you understand that not only are you hurting the victim but if you saw the tape and are talking about it you make it harder for other victims to report a sex crime.

    If it was your daughter would you want people talking about the issue in the manner you brought it up?

    This tape should have never been released no matter the out come of the case. The minor issue only makes it worse in my opinion.

  11. Sarawara says:

    The second girl in the tape was 17, not 18, when the tape was made. So it would still violate child pornography laws to possess or distribute even a tape edited to only include the portions that she’s in.

  12. LoyaltyIsMyHonor says:

    So I’m sure I’m not the first one to think this, but shouldn’t Genarlow Wilson and his buddies be prosecuted for producing child pornography then??????? Why isn’t this being addressed? Or was it part of the original charges?

  13. Loren says:

    In response to some various comments:

    I’m not sure which federal statute is at issue, but you can read OCGA 16-12-100 for yourself here.

    It makes it a crime to “create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or distribute” child porn. “View” isn’t listed.

    As Sarawara pointed out, Wilson and both girls on the tape were 17 or younger. According to the Georgia statute, a minor is anyone under 18.

    The Alexander Properties case is online here. I agree with Rogue109 that the Court’s decision is far too narrow to apply to McDade. The Court’s decision was that to “produce” the video pursuant to a discovery request was not the same thing as to reproduce, distribute, or give the tape. It’s a bit of a weird decision, relying on a semantic distinction largely for the purpose of avoiding making the legislature pass an additional exemption. The trial court’s position was more or less that there SHOULD be an allowance in that situation, but it was the legislature’s fault for omitting it.

    Personally, I see Alexander Properties as making McDade’s situation even worse. Its narrow exception doesn’t apply to McDade. And the fact that the trial court initially ruled against sharing and the question had to go all the way to the Supreme Court to be resolved, McDade’s open willingness to distribute copies seems reckless, and certainly stands in stark contrast to the Cobb prosecutor who was concerned about the children and the criminal implications.

    Finally, as CBS46 reported, McDade says that he’s only given the copy to people who’ve filed Open Records requests, but when asked by the CBS reporter who has filed said requests, he said that they don’t keep any records of that.

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