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Conflict of law affects some accused of child porn possession

A fundamental principle of criminal law holds that people should be able to understand what behavior is criminal and what is not in order to make informed decisions. Without clarity in the criminal code, individuals can unknowingly commit criminal acts without intending to do so. Unfortunately, sometimes criminal law is confusing due to nuance and sometimes it is confusing due to conflicting interpretations of the law.

In one particular kind of case, federal appellate courts are split in such a way that some individuals may be held accountable for a specific action as criminal while others will not. When an individual is convicted of child porn possession, the charges often seem black and white. But in a gray area of law, only some individuals are treated as engaging in criminal behavior when they paste the faces of children onto the bodies of adults engaged in sexual activity.

In one recent case, a man in New York was federally charged with child pornography possession for engaging in this behavior. He will potentially be required to serve ten years in prison for this behavior. However, appellate courts in both California and Florida have dismissed child pornography possession charges related to this specific act for one common-sense reason: no children were made to participate in any kind of sexual conduct in order to produce the images.

This interpretation split leaves individuals vulnerable to charges of child pornography possession in some jurisdictions but not others. This disparity is counterintuitive and should be resolved once and for all for the benefit of everyone. It is only when members of society understand what behavior is criminal and what is not that they can justly be held responsible for their actions.

Source: Thomson Reuters News & Insight, "N.Y. man charged with possessing cut-and-paste child porn," Jessica Dye, Jan. 25, 2013

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