Dec 27, 2016 Virginia Court of Appeals okays SCOTUS-contradictory permissive inference of age for child pornography prosecution
Criminal defendants in child pornography cases do not get much sympathy, other than from consumers producers, and distributors of child pornography; civil liberties advocates; and criminal defense lawyers who represent such defendants. I fall in the latter two categories.
I have written about child pornography defense here and here. Doing such defense can be gut-wrenching. The lawyer defending such a client must be ready to view the images involved in the prosecution. I prefer viewing photos of an alleged murder victim for homicide cases than viewing child pornography images. However, I do such cases because critical First Amendment, evidentiary, and statutory construction issues are involved; because I strongly believe in a quality and robust defense for every criminal defendant; and because sentencing for any such convictions must be fair at the very least.
In 2002, the legal team of the Free Speech Coalition — a major adult entertainment industry trade organization, and I was founding president of its former tri-state chapter — scored a stunning First Amendment and criminal law victory in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which invalidates criminalizing child pornography where the image looks like rather than is the image of a real person(s) under eighteen years old.
Unfortunately, despite Ashcroft v. FSC, various courts in the nation have subsequently validated child pornography statutes allowing a permissible inference that a person who is depicted as being under eighteen (for instance, wearing pigtails or a school uniform) is in fact under eighteen. That simply turns Ashcroft v. FSC on its head.
On December 27, 2016, the Virginia Court of Appeals improvidently affirmed a child pornography conviction where the jury was instructed, in accordance with the Commonwealth’s child pornography statute (Va. Code § 18.2-374.1) that: “[i]t may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.” Coleman v. Virginia, Record No. 0096-16-3 (Va. App., Dec. 27, 2016) (unpublished).
Coleman got slammed by being convicted and sentenced to an active six years of prison for posting two purportedly child pornography images on Pinterest, even though the first image shows genitals without any face, and the second image shows people whose face are not shown on the camera.
Fortunately, Coleman is an unpublished opinion, without precedential effect. Unfortunately, trial courts are going to rely on Coleman until they see a later appellate opinion saying otherwise.
Coleman reaches beyond child pornography, to over-embrace permissive inferences:
“As a preliminary matter, assuming without deciding that these issues were properly preserved, this instruction [on permissive inferences about age in this child pornography case] is not ‘burden-shifting.’ Rather, by its express language, the instruction presents a permissible, not mandatory, inference. It states that a jury may conclude from evidence other than an individual’s identity, including her appearance, that she is a minor. See Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 572 (2000) (‘A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves the predicate facts, but does not require the jury to draw that conclusion.’ (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985))).”
The foregoing Dobson case does not purport to let permissive inference statutory provisions nor permissive inference jury instructions to run amok in criminal cases. Dobson allowed such an inference for circumstances where a suspect is in possession of recently stolen property, but Dobson does not purport to apply to every single criminal case as to permissive inferences.
May Coleman be appealed and reversed, and soon.