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Virginia: The sentencing firestorm that comes with accessing more than one child pornography image

Mar 21, 2014 Virginia: The sentencing firestorm that comes with accessing more than one child pornography image

A psychological experiment was performed with alcoholics, administering electrical shocks to them each time they drank liquor. At least some of them continued to imbibe, despite the shocks.

I have heard stories of people so addicted to crack cocaine that they have sold crack to people they know are cops, with the unrealistic hope that they might still get a fix of crack as payback.

At what point of pain, threat of punishment and actual punishment do people curb their addictions, and resist their desires?

For decades, people have known about the harsh penalties — both criminal and civil for the obligation to register as a sex offender, and to face the consequences of being s registered — that can accompany child pornography convictions, yet thousands of people continue to get charged and convicted annually with child pornography offenses.

I have defended people charged with distributing and possessing multiple child pornography images, often of prepubescent children. I have had to view these images as part of my job to see which images I could contest as not of minors, doctored or computer-generated, not from the original source (and, therefore, possibly distorted to be able to determine the age of the subjects), not fitting chain of custody, and not otherwise fitting within the definition of child pornography; and to know what the prosecutor might be trying to present to the jury and judge, for me to contest doing so. It can be tougher to look at such images than viewing photos of murder victims. However, if I am not going to view the images, I have no business defending such cases.

Thus far, I have avoided convictions for more than one count of child pornography for the same client. I have had my arguments ready for why one session of viewing child pornography does not constitute more than one count of child pornography possession. On March 18, 2014, Virginia’s Court of Appeals essentially ruled that not only does each computer click to obtain child pornography represent a separate criminal act (when the click elicits a new image), but clicking once to obtain such images from multiple sources constitutes multiple criminal acts. Also, the court confirmed that, under Va. Code § 18.2-374.1:1, committing multiple counts of child pornography possession in one sitting is sufficient to qualify a defendant to be convicted for a class 5 felony (rather than the class 6 felony for a first offense) as a subsequent child pornography possession violation. Papol v. Virginia, ___ Va. App. ___ (March 18, 2014).

Will Papol scare anyone enough to lead fewer people to access child pornography? Or will they simply succumb to their impulses, to the fase feeling of anonymity online, and to a false expectation that the odds are in their favor not to get caught?

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