Child Pornography

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.

Good evening and welcome to a very special edition of Florida Criminal Law TV. I am your host attorney Stephen G. Cobb. Since 1990, I have been defending people accused of various different types of sexual offenses, and today, we are continuing to go over different types of defenses and matters that affect the defense of your case.

Now, no one likes child pornography. It is one of those things that when you have a hearing in the courtroom, you can visibly see people are squeamish by the very thought of child pornography. And during jury selection, when the question is asked, “Is there anyone here who just knowing the charge is the transmission of material harmful to minors, child pornography or possession of child pornography, is anyone here who just hearing that charge would be unable to render a fair trial”, you are going to see about 70% of the room raise their hand, which is why you have very big venire panels. Venire panel is just a very specific way in legal terminology of saying a group of people we are trying and pick 6 to 12 people for to sit on a jury. That is what a venire panel is. And right away, in these types of cases, we have large numbers of people who are excluded.

Now, at the same time while everybody is having their oooh reaction to child pornography, how many times have you scrolled through social media or seen proud parents with pictures of their baby’s first bath? Is that child pornography? My argument is no, of course not, that is not child pornography. But you have to remember, perception is often reality and there are people who, upon seeing that cute little image of dad giving his daughter her first bath because mom is barely able to move after childbirth, will turn right around and report that to law enforcement, “Oh look, I have found child pornography”. Now, we know that is not child pornography, there is no sexual intent whatsoever, and there is no improper intent whatsoever. The mere fact that a baby is nude is not unusual, that is kind of how they come out and how they are born yet we still have large numbers of people who are flipped out by that and will construe it into one thing that it is actually not.

So, my recommendation for those types of pictures is very simple. Do not take them. SERIOUSLY, do not take them. The risk is so severe, it is not worth having a keepsake of the baby’s first bath. In reality, when it comes to child pornography, do you know where the largest source of child pornography is? Wouldn’t you think that the largest source should be shut down so that no one would have access to such disgusting pictures and videos of children very young, we are talking 3, 4, 5 having sex or being sexually molested? Can you relate to wanting to watch that? No one can unless they have a brain disorder and this is where the brain defense comes in because every single person who is guilty of a sex offense I have ever had brain-imaged. And by the way, I have done more SPECT brain imaging of sexual offenders than any lawyer on the planet. If you know of one who has done more, would you, please, let me know I have looked and cannot find anybody. It will be nice to have somebody to talk to about this stuff. Not many people want to sit around and chat about the anterior portion of that and what it means when it is overreactive along with the basal ganglia. If you are rolling your eyes or going to sleep at this point, believe me, I have seen it before.

So, if you do know of somebody who does this kind of work in my field, please, let me know. With child pornography though, what we are dealing with is law enforcement is making sex offenders out of people who are just curious or doing a different search. And how are they doing that? The largest supplier of child pornography showing the most disgusting things you can imagine is your government. That is right, your government puts thousands of pictures and hundreds if not thousands of minutes of video footage of disgusting child pornography online. They make it freely available.

Now, what they are going to tell you, is for political purposes because we all know that a politician has two loves in life. Not their spouse, of course, not their partner, of course, money and reelection. We all know that to be true. They put it out there so they can do these stings getting those who are truly interested in child pornography along with those who accidentally stumble across it or who are just curious and sure enough, they arrest all of them in this big net, they make sure that the public relations officer of the local police or sheriff’s department contacts the media “We arrested 30 people for child pornography. We are doing great”, yes, of course, they do because nobody has run for a political office and won an elected position by going, “You know, we should be really smart about the problem of crime. In fact, we should solve the problem of crime one person at a time so that no one is victimized and that over time, we get criminal impulses out of society by solving the problem of crime”. They will never get elected. What do they do? You know. You heard it during the 2016 campaign and it has been going on forever, “Lock them up, throw away the key”. That is what you hear. Why? It makes people angry. What do angry people do? They run out and vote.

Do you think people vote as much when they really think about something? No. Politicians do not want you to think. That is the last thing they want you to do to think. They want you to send checks without question, they want to tell you anything and have you believe it. If they tell you the sun rises in the west and sets in the east, you are supposed to go, “Uh-huh, that is true”, which we all know is not. And with child pornography, there are a number of different ways somebody can be snared up in that. And one of the key things we look for is technical defenses.

Now, I realized this is a section on sex offense defenses but if I were to go through all of the technological defenses to child pornography alone, we will be here all day. But basically, when you have a contested child pornography case, it is really important to consider hiring an expert in that type of technology, not child pornography technology but digital technology because that is where it is found. Nobody is being prosecuted based on polaroids or camera film or anything like that. It is all digital in the modern world, it usually relates to the internet, and having an expert witness who can present testimony can show that perhaps it was on the device but it was not viewed, perhaps there was malware that resulted in it getting on the device. You also may have defenses such as someone else putting it on the device. Sharing of devices is incredibly common, especially in family and family-like settings where people are not technically a family but you have, say, 3 or 4 people living together and then you throw teenage children who are curious, I mean think about it. For a 16-year-old, does a 16-year-old want to see a naked 40-year-old woman? No, not usually. You will have an occasional outlier but generally speaking, they are looking for someone their own age. I mean think about it. Does it shock you to learn that a 16-year-old boy is interested in 16 and 15-year-old girls? Does it shock you to learn that a 15-year-old girl is interested in 16, and 17-year-old boys? Not at all. In today’s world, it can even be the same gender.

And when you have shared devices, this becomes an issue. We are now starting to see cases of child pornography with shared devices. And this is important because you do not want, say, a parent falsely convicted but at the same time, you do not want the parent acquitted, and then the child to be arrested. So, it is a very delicate balance. And if you or someone you love is in this type of situation facing all of these dilemmas, stress, and emotional trauma, feel free to contact me. I will make time available and I will be happy to answer all of your questions.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.