4 ms·

It's actually not a true strict liability offense, at least in the United States. For example, 18 USC § 2252A(a)(2)(A) criminalizes "knowingly receiv[ing] or d

It's actually not a true strict liability offense, at least in the United States. For example, 18 USC § 2252A(a)(2)(A) criminalizes "knowingly receiv[ing] or distribut[ing] any child pornography." § 2252A(a)(5) requires "knowingly possess[ing], or knowingly access[ing] with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography." http://www.law.cornell.edu/uscode/text/18/2252 http://www.law.cornell.edu/uscode/text/18/2252 http://www.law.cornell.edu/uscode/text/18/2252A http://www.law.cornell.edu/uscode/text/18/2252A To be sure, "knowingly" is a lower mens rea standard than something like "willfully" or "intentionally" which require bad intent, but it is not strict liability. Examples of strict liability crimes which have no mens rea requirement are statutory rape and drunk driving.

Falkvinge 14y ago
Thank you for this additional information about specifics of the United States. The described case with accidentally recording and realizing you accidentally recorded still makes you culpable under the "knowingly", though. Cheers, Rick
- ScottBurson 14y ago
  IANAL, but I highly doubt it. I think the ordinary meaning of "knowingly" means you knew what you were about to do before you did it. I can't believe there are very many courts who would convict under the circumstances of your example. OTOH, there might be a few, and if the law is not intended to be enforced exactly as written, that is certainly an excellent argument for changing it.
- objclxt 14y ago
  I have a real problem with your argument here - as I suspect many lawyers would. I'd go so far as to call your hypothetical example completely laughable. The idea that if I stumble across someone raping a child they would "point and laugh" is completely ridiculous. It's somewhat ironic that given one of the arguments for strict liability laws was "won't someone think of the children" you're basically making the same point. I agree with many of your points - a 17 year old being sentenced for having sex with a 15 year old, for example, and it's possible to cite many, many cases where this sort of thing has occurred. I doubt, however, you can cite a single case where somebody has been prosecuted for unknowingly recording child pornography. I think this very much weakens your argument, because you make it sound as if strict liability is a be-all end-all, when in fact there is precedent to override it (speaking in general terms - the exact precedent would vary from country to country). Laws are typically not designed to cover future eventualities. It seems to me highly likely that the situation you describe is already easily avoided legally. After all, if a CCTV camera recorded a child rape in progress that would not be a criminal offence, since most countries provide exceptions for recording images for the purposes of preventing crime. It would be relatively straight forward to branch these laws out to devices like Google Goggles. But you don't really consider these arguments, I suspect primarily because the image of a child rapist "getting away with it" is quite powerful, and you're designing your post to evoke heavily emotional responses. But it's very much a "won't you think of the children" argument, and that sours it for me.
  - Klinky 14y ago
    Most of Traci Lords' pornographic videos were produced when she was under the age of 18. It is unclear exactly how many people knew this or facilitated it. The company that produced her videos was prosecuted and practically all of her films have been banned in the US. http://en.wikipedia.org/wiki/Traci_Lords#Porn_career http://en.wikipedia.org/wiki/Traci_Lords#Porn_career
  - uxp 14y ago
    I agree that the idea someone was to walk around a tree in a park and witness a rape in exactly that context is laughable, but the idea remains. If someone was recording their entire life from a first person perspective, and they did come into the situation to witness a violent crime be committed where possession of a recording of that crime is a crime in itself, what does the law say about the presumably innocent bystander? CCTV cameras have the implied usage of security, that's why an alleyway camera's recording could be admitted as evidence against the suspect, but not the owner of the camera itself. Google Glass is a recreational device. Hardly anyone has one right now, but the idea sits with the idea that people will wear one for fun to capture fun events they participate in, which turns the argument around in the case of someone inadvertently recording an event that the mere possession of the recording is illegal. In a black and white situation, if someone had a recording of child pornography on their Google Glass device, the idea that the device is designed to record the events the wearer participates in for recreation or enjoyment already gives the notion that the wearer enjoyed recording the event. This argument is fragile in logic, but within the current state of the laws, it is sound. Lawyers will descend upon the owner of the Glass device and paint him or her as a pedophile who purposefully recorded the event for later enjoyment. It will be up to the person who recorded the event to defend themselves against false accusation and against a law that claims that, since he/she is in possession of the recording, they are guilty of possession already. > Laws are typically not designed to cover future eventualities. Have you read much about the PATRIOT act and how it's being applied to gather an analyse communication channels in order to thwart crimes and attacks before they happen? Because, it seems that many of the laws enacted over the past decade under the guise of National Security are designed to prevent crimes before they happen. Just as much as "think of the children", "national security" is just as much a hot-button topic designed to allow leeway into the legal process of finding and convicting "bad people" before they do bad. I'm far from an Alex Jones kind of guy, but there is plenty of evidence that the US government is actively surveilling it's populace for exactly the reason of preventing future eventualities. Earlier this year a man in the UK was denied unsupervised visits with his own daughter after he admitted to downloading music, but receiving unwanted child pornography instead. No charges were filed, but it sure messed up his situation. http://www.bbc.co.uk/news/uk-england-humber-17274848 http://www.bbc.co.uk/news/uk-england-humber-17274848
- lotharbot 14y ago
  In US Law, you can make an "affirmative defense" [0] if you discover that you possess a small amount of child porn, and either immediately destroy it or immediately turn it over to law enforcement [1]. By doing so, you demonstrate that you did not intend to procure or possess said material, and are therefore not culpable [2]. [0] http://en.wikipedia.org/wiki/Affirmative_defense http://en.wikipedia.org/wiki/Affirmative_defense - admitting to the fact while introducing a factor which justifies it [1] for example, http://www.law.cornell.edu/uscode/text/18/2252A http://www.law.cornell.edu/uscode/text/18/2252A section (d) [2] I am not a lawyer. This is not legal advice.
- rprasad 14y ago
  No, it does not. You have to intend to film child pornography to satisfy the mens rea element. Filming something accidentally, by definition, will not satisfy mens rea.

Falkvinge 14y ago

Thank you for this additional information about specifics of the United States. The described case with accidentally recording and realizing you accidentally recorded still makes you culpable under the "knowingly", though. Cheers, Rick

ScottBurson 14y ago
IANAL, but I highly doubt it. I think the ordinary meaning of "knowingly" means you knew what you were about to do before you did it. I can't believe there are very many courts who would convict under the circumstances of your example. OTOH, there might be a few, and if the law is not intended to be enforced exactly as written, that is certainly an excellent argument for changing it.
objclxt 14y ago
I have a real problem with your argument here - as I suspect many lawyers would. I'd go so far as to call your hypothetical example completely laughable. The idea that if I stumble across someone raping a child they would "point and laugh" is completely ridiculous. It's somewhat ironic that given one of the arguments for strict liability laws was "won't someone think of the children" you're basically making the same point. I agree with many of your points - a 17 year old being sentenced for having sex with a 15 year old, for example, and it's possible to cite many, many cases where this sort of thing has occurred. I doubt, however, you can cite a single case where somebody has been prosecuted for unknowingly recording child pornography. I think this very much weakens your argument, because you make it sound as if strict liability is a be-all end-all, when in fact there is precedent to override it (speaking in general terms - the exact precedent would vary from country to country). Laws are typically not designed to cover future eventualities. It seems to me highly likely that the situation you describe is already easily avoided legally. After all, if a CCTV camera recorded a child rape in progress that would not be a criminal offence, since most countries provide exceptions for recording images for the purposes of preventing crime. It would be relatively straight forward to branch these laws out to devices like Google Goggles. But you don't really consider these arguments, I suspect primarily because the image of a child rapist "getting away with it" is quite powerful, and you're designing your post to evoke heavily emotional responses. But it's very much a "won't you think of the children" argument, and that sours it for me.
- Klinky 14y ago
  Most of Traci Lords' pornographic videos were produced when she was under the age of 18. It is unclear exactly how many people knew this or facilitated it. The company that produced her videos was prosecuted and practically all of her films have been banned in the US. http://en.wikipedia.org/wiki/Traci_Lords#Porn_career http://en.wikipedia.org/wiki/Traci_Lords#Porn_career
- uxp 14y ago
  I agree that the idea someone was to walk around a tree in a park and witness a rape in exactly that context is laughable, but the idea remains. If someone was recording their entire life from a first person perspective, and they did come into the situation to witness a violent crime be committed where possession of a recording of that crime is a crime in itself, what does the law say about the presumably innocent bystander? CCTV cameras have the implied usage of security, that's why an alleyway camera's recording could be admitted as evidence against the suspect, but not the owner of the camera itself. Google Glass is a recreational device. Hardly anyone has one right now, but the idea sits with the idea that people will wear one for fun to capture fun events they participate in, which turns the argument around in the case of someone inadvertently recording an event that the mere possession of the recording is illegal. In a black and white situation, if someone had a recording of child pornography on their Google Glass device, the idea that the device is designed to record the events the wearer participates in for recreation or enjoyment already gives the notion that the wearer enjoyed recording the event. This argument is fragile in logic, but within the current state of the laws, it is sound. Lawyers will descend upon the owner of the Glass device and paint him or her as a pedophile who purposefully recorded the event for later enjoyment. It will be up to the person who recorded the event to defend themselves against false accusation and against a law that claims that, since he/she is in possession of the recording, they are guilty of possession already. > Laws are typically not designed to cover future eventualities. Have you read much about the PATRIOT act and how it's being applied to gather an analyse communication channels in order to thwart crimes and attacks before they happen? Because, it seems that many of the laws enacted over the past decade under the guise of National Security are designed to prevent crimes before they happen. Just as much as "think of the children", "national security" is just as much a hot-button topic designed to allow leeway into the legal process of finding and convicting "bad people" before they do bad. I'm far from an Alex Jones kind of guy, but there is plenty of evidence that the US government is actively surveilling it's populace for exactly the reason of preventing future eventualities. Earlier this year a man in the UK was denied unsupervised visits with his own daughter after he admitted to downloading music, but receiving unwanted child pornography instead. No charges were filed, but it sure messed up his situation. http://www.bbc.co.uk/news/uk-england-humber-17274848 http://www.bbc.co.uk/news/uk-england-humber-17274848
lotharbot 14y ago
In US Law, you can make an "affirmative defense" [0] if you discover that you possess a small amount of child porn, and either immediately destroy it or immediately turn it over to law enforcement [1]. By doing so, you demonstrate that you did not intend to procure or possess said material, and are therefore not culpable [2]. [0] http://en.wikipedia.org/wiki/Affirmative_defense http://en.wikipedia.org/wiki/Affirmative_defense - admitting to the fact while introducing a factor which justifies it [1] for example, http://www.law.cornell.edu/uscode/text/18/2252A http://www.law.cornell.edu/uscode/text/18/2252A section (d) [2] I am not a lawyer. This is not legal advice.
rprasad 14y ago
No, it does not. You have to intend to film child pornography to satisfy the mens rea element. Filming something accidentally, by definition, will not satisfy mens rea.