Philadelphia Criminal Defense Lawyer Blog

When Amy was a young girl, her Uncle sexually abused her by forcing her to pose for sexually explicit photographs and sharing those photographs with other pedophiles. Her photographs, which became known as “the Misty Series”, were some of the first photographs to ever surface in the internet world of child pornography and remain popular amongst child pornography viewers even today. Amy has since reached majority and with the help of a creative lawyer, is now seeking restitution from all those convicted of possessing her photographs.

The Uncle who was responsible for violating Amy as a child currently remains in prison, yet in the world of child pornography, Amy’s pictures continue to circulate. Every time someone is arrested for possession of child pornography containing one or more of her photographs, Amy receives notification from the Federal Government. Amy’s lawyer has begun filing lawsuits against those individuals based on child exploitation. He had Amy examined by a psychiatrist and also had her write a victim impact statement. He then hired an economist to examine the psychiatrist’s findings, estimate counseling, diminished wages and lawyer’s fees, and determine the total monetary damages faced by Amy due to her sexual abuse. This number was determined to be $3,367,854.00.

The idea of restitution gives the Court another means by which to punish child pornography offenders. Prison sentences for offenders have consistently been extended and conditions of parole have become more and more restrictive, to the point where equal protection under the Constitution has become an issue raised in defense of violators. By holding offenders financially liable for their actions, Courts have an alternative to increasing prison sentences, which may then be challenged as unconstitutional.

Since Amy has begun seeking restitution from those possessing her pornographic photographs, Amy has collected $170,000.00; $130,000.00 contributed by an executive from a pharmaceutical company convicted of possession of child pornography. Amy is suing under a theory of joint and several liability; seeking contribution from all those convicted of possessing her photographs until she receives the total of $3,367,854.00.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately. You may schedule a confidential consultation by calling (215) 563-9800 or by email, marc@nefflawoffices.com.

The Third Circuit Court of Appeals recently decided the case of United States v. Olhovsky, ruling that the sentence imposed by the District Court upon the Defendant was unreasonable. Nicolau Olhovsky was sentenced to six years imprisonment after pleading guilty to charges of possessing child pornography. In 2004, an undercover law enforcement officer was investigating an Internet Relay Chat channel (“IRC”) in which users would trade pornographic images of children. Olhovsky was identified as one of the IRC’s users. In December of 2004, and shortly after Olhovsky’s eighteenth birthday, officers obtained a search warrant for Olhovsky’s home which he shared with his mother and sister. The subsequent search resulted in discovery of a hard drive containing over six hundred images of child pornography. Olhovsky admitted to owning the hard drive and participating in the online trading of child pornographic images.

Nicolau Olhovsky was born with several birth defects, including problems with his heart and a concave chest. His parents divorced when he was seven; he and his sister lived with their mother who became permanently disabled in a car accident shortly after the divorce. Olhovsky was awkward and isolated as a child; bullied and teased at school because of his physical deficiencies. He had a history of depression, suicidal tendencies, and was admitted into a psychiatric facility for treatment. As a result of his many physical and social problems, Olhovsky spent much of his adolescence alone in his room with his computer.

Following his guilty plea to child pornography charges, the Court ordered a psychological evaluation prior to sentencing. In his meetings with the court-appointed psychologist, Olhovsky discussed his adolescence, his current mental state, and explained as to how he became involved with child pornography; he had received an email which he opened, and this email sparked his curiosity. Dr. Silverman, who was contracted with Pretrial Services, wrote a letter to the trial judge expressing his opinion on Olhovsky and emphasizing he had never written a similar letter for any other Defendant. In his letter, Silverman alluded to Olhovsky’s past and that Olhovsky had the maturity level of a fourteen or fifteen year old. He explained that Olhovsky was extremely remorseful for his crimes and that he was slowly progressing towards becoming a mature adult; he is currently in a relationship with an adult female, he has been more active socially, etc. Most importantly, Dr. Silverman opined that Olhovsky’s collection of child pornography was due to his immaturity and curiosity, and that he was a low risk for becoming a pedophile or repeat offender.

Upon examination of this letter, defense counsel attempted to subpoena Dr. Silverman to testify at the sentencing of Olhovsky. The prosecution objected to the subpoena being granted, and the trial court refused to grant the subpoena, holding that Dr. Silverman would be testifying as an expert and such testimony was cumulative in expert reports available to the Court. The Court stated that Dr. Silverman was free to testify voluntarily and could submit additional reports for review; the defense alleges that Pretrial Services threatened to revoke Dr. Silverman’s vendor contract had he volunteered to testify, causing him not only to choose not to, but also to cease communication with the defense. Upon sentencing, the Court examined the mitigating evidence which was available and chose to impose a six year sentence; less than the suggested guidelines but sufficiently lengthy to satisfy the Court’s determination that a “substantial, indeed, draconian” punishment was required.

On appeal, the Third Circuit held that not only did the trial court err in not granting the subpoena for Dr. Silverman to testify as an expert, but that his testimony would actually be factual. Dr. Silverman could have testified to mitigating circumstances which were not contained in his letter to the Court. Further, the Appellate Court held the District Court failed to fully consider the expert reports submitted by the defense as mitigating evidence, imposing sentence to punish the Defendant rather than rehabilitate him. Olhovsky’s sentence was subsequently vacated and the case was remanded for resentencing.

Child Pornography
Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

As cellular telephone technology advances at an extremely rapid pace, more and more teenagers are possessing phones with the capabilities to snap still photos or record short videos. Coupled with the fact that as a society, children are becoming acquainted with sex at younger ages, this technology has led to the practice of sexting; sending nude photos or other sexually explicit photos and/or videos to a recipient via cell phone. The practice of sexting has led to numerous ethical and moral arguments, but the practice amongst teens has caught the attention of law enforcement. In many jurisdictions, these sexually explicit images and videos, sent amongst teenagers, are violations of child pornography laws.

An online survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy showed that one-in-five teenage participants have sent and/or received sexually explicit material via cell phone. Nearly two-thirds of those who admitted to sexting only did so within a boyfriend/girlfriend relationship; however teens in the other one-third admitted to sexting for the purpose of “hooking-up”. It is this culture of a casual sexual relationship which causes worry amongst advocacy groups who blame society’s attitude for the first rise in teenage pregnancy rates in the past fifteen years.

A Delaware middle-school recently dealt with an incident where cell phones were confiscated during class because they were forbidden in the classroom, only to find sexually explicit material upon inspection of the phone’s content. The school determined the images were not sent at or during school and decided to notify the students’ parents to deal with the problem. Other teens have not been as lucky. Another student in Delaware faces obscenity charges for sending nude photos of himself to classmates. In Pennsylvania, seven students were charged with sending or receiving child pornography when their phones were discovered to contain explicit images sent between the students. Convictions for these offenses not only will carry potential confinement, fines, and psychological evaluations, but may also require those convicted to be registered as sex offenders.

Many oppose prosecution in these cases for the simple reason that the participants do not have a criminal intent, but rather are merely conforming to society as they see it. There are no penalties for the same consensual actions amongst those of age. Many agree that the responsibility stems with the parents to talk to their children. Children should understand that once an image is sent, they no longer have any control over it; and with today’s technology, such material can easily end-up on the internet. Teens should understand that cellular phone technology does not come with a guarantee of privacy.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

New Jersey Assemblyman Neil Cohen resigned from his position on Monday, following allegations of suspected child pornography found on his computer. Colleagues of Cohen’s, who use the same legislative district office, alerted law enforcement officials last week of the alleged images found on Cohen’s computer. According to State Assemblyman Joseph Cryan, the investigation of Cohen began when a staffer in the Union office found a printed-out photo of a nude female, suspected to be in her early teens or younger.

The case has been referred to the State Attorney General’s office for investigation; Cohen has yet to be charged with a criminal offense. Cohen, a divorce lawyer, has served in the assembly for nearly 20-years. Cohen, who is regarded highly by his peers, will now have his legacy overshadowed by these allegations according to colleagues and other State officials. New Jersey Governor Jon Corzine released a statement expressing his shock and disturbance by the allegations. “Child pornography reflects a horrible debasement of children that is totally intolerable. Creating, distributing and using child pornography should be pursued vigorously by law enforcement wherever it is found." said Corzine. Cohen remains in psychiatric care, and pending further investigation, will likely face criminal charges.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

On July 22, 2008, the 3rd Circuit U.S. Court of Appeals affirmed the district court’s ruling in ACLU v. MuKasey, striking-down the Child Online Protection Act (COPA) which was passed in 1998; finding that the act is unconstitutional. The case, decided in Philadelphia, Pennsylvania, will now likely be appealed to the United States Supreme Court.

COPA, which was passed nearly a decade ago, has been the topic of constant legal battles; an almost immediate injunction following the Act’s passage has not allowed the law to ever take effect. The Child Online Protection Act was passed three years after the United States Supreme Court ruled a similar act unconstitutional.

In the decision, Judge Greenberg writes that in order to survive the “strict-scrutiny” test of constitutionality, the law in question must be of a compelling governmental interest and narrowly tailored to its purpose. The United States Supreme Court had ruled previously that “there is a compelling interest in protecting the physical and psychological well-being of minors”. The Court of Appeals scrutinized COPA under the standard of whether it was narrowly tailored to achieve its purpose.

The Act was written to include “‘material that is harmful to minors’ ” which includes the concept of ‘taking as a whole’ material designed to appeal to the ‘prurient interest’ of minors; and materials which lack ‘serious literary’ or other value to minors.” The Court agreed with the lower court’s determination that such language was overly broad and vague, and could endanger a wide range of communications, exhibits, and speakers. Further, the Court agreed with the lower court’s assertions that programs and filters were a less restrictive, yet successful, way to prevent minors from accessing such content.

The Law Offices of Marc Neff has extensive experience in matters involving child pornography. Mr. Neff has handled numerous cases of this nature. The office employs a team approach using only the must qualified forensic experts. For a confidential consultation, contact Mr. Neff at (215) 563-9800 or via email Marc@nefflawoffices.com.