Question of the Day

If the DA is guilty of distributing child pornography, are Genarlow and his friends guilty of making child pornography with the intent to distribute it?

38 comments

  1. griftdrift says:

    Just checked the O.C.G.A. and it only states “person” who “employ” a minor to perform sex acts. So yeah, technically they could have been charged under the statute. I’m not aware of any provision anywhere that addresses a case where all involved were minors.

    But intent to distribute? That’s going to be a pretty hard one to prove, Erick. I mean it’s not like they were passing out copies willy nilly like some people.

  2. LoyaltyIsMyHonor says:

    Why does it matter if they “employed” someone or not or intended to distribute? So if someone just films an adult having sex with a child but no one is paid and there’s on intention of distributing the video, the the video itself is legal? The bottom line is that they produced child pornography. Which is illegal. BTW, how does the Code define “employ”?

  3. John Konop says:

    Do you think it is not racist that you never have made a statement of outrage of the D.A. releasing a video of the underage black girls having sex? Do you take joy in how the grls are being exploited who were vicims in this case?

    No one is defending what happen between the minors or what Wilson did, but as a father I would hope you would be more sensitive?

    Do you not get that McDade is an adult and Wilson was a minor?

    I was at a GOP function last night and numerous people commented to me that you make Republicans look like a bunch of Klansmen by your constant attacks on Wilson and defense of Mcdade.

  4. griftdrift says:

    LisMyH, the code doesn’t actually define employ but I believe it means “use” not pay for service. Here is what I believe is the relevant code section.

    “It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.”

    O.C.G.A. 16-12-100

  5. LoyaltyIsMyHonor says:

    Lol….thanks griftdrift for the research. I often find myself overlooking the obvious when reading code too. It’s so damn dry!

  6. dorian says:

    Actually, the code section says “employ, use, persuade, induce, entice or coerce” (OCGA 16-12-100(b)(1).

  7. LoyaltyIsMyHonor says:

    I guess this begs the question of why no one was charged with producing child porn…or possessing it? or was that part of the original charges? Geez, I’m so sick of this case, but if Wilson’s supporters want to charge the DA with distributing kiddie porn, the Wilson and his buddies should be charged with producing Kiddie porn. Or am I way off on this?

  8. griftdrift says:

    I think it would be an interesting legal tangle and probably the reason there was no original charge. Laws protecting minors are based on the premises they do not have the maturity and experience to make certain judgments on their own. Well what if the perpertrators were minors also? If you don’t charge them as adult (which would be rather absurd in this case) wouldn’t the same philosophy apply?

    I’ve looked but I can’t find any case where those type of charges were brought where all involved were minors. This whole thing is just completely off the atlas.

  9. LoyaltyIsMyHonor says:

    “This whole thing is just completely off the atlas.”

    Boy you said it.

    I grew tired of this whole thing months ago, but when I heard about how they wanted to bring up charges against the DA, I thought: “Hey wait a second, this doesn’t add up”

  10. bowersville says:

    The code section can be read “It is unlawful for any person knowingly to…use, persuade, induce, entice, or coerce any minor…or assist any other person…producing any visual median depicting such conduct.”

    I think it is now a matter of the statute of limitations.

  11. Loren says:

    I may be mistaken, but I think only one guy was responsible for videotaping the sexual activity. I imagine that that one guy could be prosecuted for child pornography, but not the others in the room.

  12. Erick says:

    Rugby, that’d actually require me to think. I’d much prefer keeping a level playing field between me and Konop by not doing so.

  13. John Konop says:

    Erick

    I take it then you support D.A. Mcdade on his release of underage black girls having sex on the video since you refuse to denounce this action.

    This demonstrates the hypocrisy of your support of DA Mcdade. It makes it hard to believe you cared or thought of the underage black girls as victims. The only question now, is it because of race or blind loyalty?

  14. bowersville says:

    OCGA 17-3-1(c) basically states prosecution must be commenced within 4 years of commission of the crime(felony), unless the victim is under 14 and then the time frame is 7 years.

  15. dorian says:

    As it pertains to Mr. Wilson and his confederates, I would think that double jeapordy would prohibit further prosecution as the tape stems from the same indicdent from which they were charged. Since folks seem to think Lone Wolf McDade is a hangin’ sort of DA, it seems odd that he didn’t tack on exploitation too. In retrospect, that is a shame, since it wouldv’e rendered most of this argument moot.

  16. Romegaguy says:

    What about a legislator that has several gatherings to view the video? What kind of sentence should they be preparing for?

  17. Chris says:

    Did I miss when Konop fell into the deep end of the insanity pool? What’s with all the personal attacks against Erick?

  18. John Konop says:

    Chris

    Do you support D.A. Mcdade on his release of underage black girls having sex on the video?

    Chris you been a big voice of individual freedoms and overreaching big government. I do not get why you are not outraged.

    This is not about Wilson! It is about the rights of the girls.

    I am sorry you think this issue is part of the “insanity pool”.

    As a parent I am disgusted by the DA and I have not spoken to any parent I know who did not think this was outrageous.

    And I shocked some of you think this is a joke.

  19. gatormathis says:

    Somebody(I forget who) does raise a valid point.

    Someone was “filming” this “event”.

    Once filmed, I guess due to the age of the participants, it becomes “child pornography”.

    It should be just as illegal to harbor this video in one’s posssesion, as it would photographs or any other subject media depicting minors in lewd manners. Whether the lewdness is of the minor’s choosing is of no consequence in the matter.

    It is an actual underage person, held in media that can be veiwed by others due solely to its availability and content.

    If the same pictures were downloaded onto a computer, printed out and put in a drawer, or retained in any other form and manner, and were found by someone conducting an investigation, they would be considered evidence.

    This is a scenario that has been seen played out in the news media over and over again as molesters are targeted and apprehended.

    What’s the difference for Genarlow the “director”?

    The only thing I find humorous about this whole situation is that everytime I see this cat’s name, I figure his mother was really wanting to name him “Geraldo”, but couldn’t get the spelling right.

  20. TPSoCal says:

    Well, I for one am hoping the DA loses his job. I don’t think he intended to anything harmful, but he obviously lack proper judgement.

  21. Rpolitic says:

    What about the Senators who watched to learn the entire story? How about those that requested it?

    This is a typical ploy by a loosing crew to distract from the real issue. Wilson and his friends took serious advantage of two young girls. That John would defend them is the real shock. Isn’t it John who talks about the sanctity of children, how special they are etc…

    Hey at least I didn’t see a link to his page this time.

  22. Rpolitic says:

    OH and I also understand that BJ was trying to give the tape to any media outlet she could to get them to run it. But I hear they passed on hers because she did a little edit to the tape and wouldn’t give them the entirety of it.

  23. Sarawara says:

    Dorian, I don’t think double jeopardy would apply here because I don’t think exploitation or production of pornography are considered lesser included charge of sexual assault/rape. The elements of the two crimes are not the same, which is required for a lesser or greater included charge to be subject to double jeopardy. The exploitation charge requires the creation of images of sexual acts performed with or by a minor, but does not require force or lack of consent while the rape charge on which the others pled guilty did require sexual intercourse achieved through force or without consent. I don’t see any procedural impediment to a prosecutor charging someone with both rape and exploitation in the event they tape a sexual assault on a minor. In that case, it probably would not constitute double jeopardy to try them subsequently for the exploitation or production charges.

    I could be wrong, but my guess is the reason whoever did the filming was not charged with exploitation or production of child pornography is because he took a plea deal and that deal probably explicitly stated that whatever charges he pled guilty to were all of the charges that could be brought for the events on the night of ____.

    However, double jeopardy and the GA plea agreement would not prevent federal prosecution of whoever created the tape. I do think that the federal laws on production and distribution of child pornography require the producer to have transported the tape through the mail or interstate commerce, however, which the feds probably cannot show here since the tape was seized as evidence before it could be distributed or transported.

    And I think I said this before, but some have asked the question again about prosecution of viewers of the tape so I’ll repeat. There was a recent GA Court of Appeals case that overturned a charge of possession of child pornography because the prosecution could not show that the accused had taken willful action to save the pornographic images found in his computer’s cache for future access. I think that case shows that evidence that a person viewed child pornography but did not retain a copy of it will be insufficient to prosecute them under the GA statutes. There is no Georgia statute that specifically prohibits merely watching child pornography without actually willfully possessing it. (Sort of like how you won’t be charged with possession of marijuana if the cops find it in your bloodstream. Evidence that you’ve used it isn’t enough for possession charges.) Other states with similar statutes such as PA have interpreted them to mean that mere viewing of child pornography is not a criminal act without possesion or distribution. So, probably, the others who just watched the tape in Johnson’s office could not be prosecuted. Same thing for anyone who has managed to view the tape but did not actually possess a copy. Hopefully any folks who came into possession of copies of the tape have since taken the smart setp of destroying them.

  24. Rick Day says:

    So lets talk about how the last of the Republican party will be swept out with the War on Iraqi Terror.

    What is it with you Republicans and blowjobs?

  25. griftdrift says:

    Actually RPolitic WSB is now reporting via Chris Krok that the tape wasn’t requested, it was sent from McDade with an accompanying letter saying how much it would help legislators with their task.

    And does anyone really believe the defense would try to publicize a piece of media that shows their defendant in such a bad light?

    Is that really the best you got?

  26. dorian says:

    Sarawara, I appreciate the extremely well-written post, but I disagree. The purpose of the rule of double jeopardy is to prevent multiple, and thus excessive punishment. I do not think that a crime has to be a lesser included offense of another for that to occur. For example, if a person is charged with murder and convicted by a jury, the DA could not then go back and charge the person with possession of a firearm during the commission of a felony. What if it happened in front of a kid? The prosecutor, after the 1 st and 2 nd trial, could get a 3rd for cruelty to a child? If double jeopardy were restricted to lesser included offenses, it would allow prosecutors to hand out subsequent indictments and get almost an infinite amount of bites at the apple. All for the same criminal transaction. As I am sure you know, there is a procedural and substantive bar in double jeopardy, which act independent of each other. My interpretation of what you were commenting on was the substantive bar. Again, I could be wrong, but if I were a defense attorney, I would raise 9 levels of hell about it.

  27. John Konop says:

    Rpolitic

    Do you understand this about the rights of the girls not Wilson?

    If the Wilson case was about the rights of the girl the prosecutor would have fought to not ever have the tape sent out to anyone.

    Robert as a parent do you support having rape kit videos of private pictures sent out to the public by prosecutors?

  28. Sarawara says:

    Dorian, I’m not a criminal lawyer, but I did a little research before I wrote the explanation above and I still think it’s accurate after researching more today.

    The applicable test for determining whether two offenses are distinct for double jeopardy purposes, as set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), turns on “whether each offense contains an element not contained in the other.”

    In this instance, the production of child pornography charge requires the creation of a depiction of a minor performing a sexual act, which is not an element of the rape charge. And the rape charge requires force or lack of consent, which is not an element of the child pornography charge. So, I think the 2 charges are distinct and double jeopardy would not prohibit subsequent prosecution on the child pornography charge.

    You are right that the defense attorney of the person responsible for the taping would probably raise holy hell if his client was charged with a violation of GA’s child pornography laws now. However, I think his arguments would probably be based on the terms of the plea deal, which I presume would generally state that the charges being pled to constitute all of the charges the state can or will bring for the events on the night in question. If the defense attorney made a double jeopardy argument I think it would fail.

    “For example, if a person is charged with murder and convicted by a jury, the DA could not then go back and charge the person with possession of a firearm during the commission of a felony.”

    I’ve searched the GA code and I don’t see where “possession of a firearm during commission of a felony” is a recognized charge in Georgia, so I don’t think it qualifies. However, by way of example, a prosecutor could try a defendant on a murder charge and then subsequently charge him with conspiracy to commit murder if there’s evidence that he conspired with others to accomplish the murder. There’s tons of cases out there holding that a subsequent prosecution on a conspiracy charge does not constitute double jeopardy, because conspiracy requires separate and distinct factual elements from the original charge.

    ” If double jeopardy were restricted to lesser included offenses, it would allow prosecutors to hand out subsequent indictments and get almost an infinite amount of bites at the apple. All for the same criminal transaction.”

    If there is at least one distinct separate factual element of each criminal offense charged for, then I think they can seek subsequent indictments, provided they operate within the statutes of limitations and do not violate the terms of any plea deals that the defendants may reach on earlier charges. Practically speaking, I think the reason we don’t see this tactic more often is because it often works better to overcharge the defendant from the get-go to pressure him to plead our or to get the biggest total sentence in one trial.

    There’s also a complicated rule of collateral estoppel/issue preclusion under which factual issues that have been decided in cases resulting in an acquittal often cannot be relitigated in a subsequent prosecution arising out of the same facts but on a different charge. Where a defendant was previously acquitted, issue preclusion probably makes subsequent prosecutions prohibitively difficult and not worth the prosecutor’s time and effort if most of the necessary facts cannot be relitigated. But that issue preclusion wouldn’t apply here to whoever created this tape because the rest of the participants pled out to their charges and were not acquitted.

  29. dorian says:

    Seems like the code section is 16-11-133 for possession of a firearm during the commission of a felony. Perhaps, I should have also added by a convicted felon as well, since the code section only applies to convicted felons. I don’t know a whole lot about federal law, although it seems like the federal law is the floor. That is, the states can extend double jeopardy, but not restrict it. You could be right, but I’d damn sure go down swinging. Annnd, depending on the judge, I’d really like my chances.

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