One of the more disturbing recent prosecutorial trends is the government’s increasing focus on Peer to Peer (P2P) file sharing networks as a basis for bringing charges of disseminating/distributing child pornography against subscriber/users whose only act to view shared files. In most states, such charges carry significantly enhanced penalties, including mandatory minimum terms in state prison. Here in Massachusetts, MGL ch. 272, section 29B (a) and 29B(b), covering Dissemination of Visual Material of Child in State of Nudity or Sexual Conduct, impose sentences of not less than 10 yrs and up to 20 yrs after conviction. The elements of either crime include proof beyond a reasonable doubt of both lascivious intent and an intent to distribute. For years, these statutes were understandably used to target purveyors, creators, up-loaders, and actual distributors of child pornography; with the sentence enhancement used to distinguish/differentiate such offenders from those who were guilty of merely possessing child pornography. Prosecutors now, however, are using these statutes to prosecute P2P users who access child pornography via the network and view it on their own computers. Under an ordinary statutory analysis, such conduct would only meet the elements of mere possession. To the government, though, the fact that the network itself is set with a default that creates a shared folder to hold downloads, thus keeping them available for others to access after the viewer is finished, is seen here in Massachusetts as a basis to charge, and seek, 10-20 yrs in prison. To do this to individuals who do not consciously send, transmit, distribute, or pass on such materials to third parties solely because the files come from and automatically return to a "shared" network, in my opinion, constitutes a gross miscarriage of justice, appears inconsistent with the legislative intent of the underlying statue and verges on abuse of prosecutorial discretion, given that the charge is sometimes used to leverage guilty pleas on lesser included offenses. While I have defended a number of these "enhanced" cases in Massachusetts, the trend is not limited to this Commonwealth as I have also dealt with them in other states, including one instance where a 16 yr. boy was charged with "distributing" because of his accessing "teen" files from a P2P network. I have yet to take one to trial , though, because, frankly, the consequence of losing (and face it, few jurors remain open-minded on the question of guilt or innocence after seeing the offending images during the evidentiary phase of trial) are too significant to risk. Still, when considering such charges, prosecutors are wise to be reminded that proof beyond a reasonable doubt of an actual intent to distribute remains a required element.
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About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A six time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and rated "Superb" by Avvo. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of all manner of serious criminal offenses in both state and federal courts throughout, Massachusetts, New York, the greater New England Region, and elsewhere in the United States. He is widely regarded as one of