December 24, 2013

Pennsylvania seeks to Increase Penalties for Child Pornography Crimes

The Pennsylvania State Senate recently approved a bill to increase the degree of child pornography crimes. The bill was approved in response to the Jerry Sandusky and Catholic clergy molestation scandals that have occurred in Pennsylvania.

Under the new bill; producing, disseminating or viewing child pornography would be considered more serious crimes if the material depicts indecent contact with a child. This would make the production of child pornography as high as a first-degree felony on a second and any subsequent offense. Other related bills pending in the Legislature would increase the punishment for people found guilty of covering up child abuse and expand the list of people required to report a suspicion of child abuse.

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December 10, 2013

Social Media Ban for Paroled Sex-Offenders

A New Jersey court has recently ruled that paroled sex offenders can be barred from social media websites such as Facebook, LinkedIn and other online social networks. Two paroled sex-offenders challenged the restriction saying that the social networks were important ways to get news and find business opportunities.

The three-judge panel ruled that the offenders can be kept off the social networks as a condition of parole. The judges note, that social networks are an important facet of modern life but, there are good reasons to keep the parole restrictions in place, “The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussion on the Internet with children or strangers who might fall prey to their potential recidivist behavior.”

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August 2, 2012

Pennsylvania Court Considers the Standard of Proof Required for Online Child Abuse Registry

In G.V. v. Department of Public Welfare, Caregiver G.V. appealed the order of the Pennsylvania Department of Public Welfare (DPW), Bureau of Hearings and Appeals', which adopted an administrative law judge's recommendation denying petitioner's appeal and his request to have a child abuse report against him expunged under the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6386.

G.V. was accused of sexually abusing his 16 year-old great niece of whom his wife and himself had custody. An investigation was conducted and a report was filed with the ChildLine and Abuse Registry (ChildLine Registry) listing him as a perpetrator of child abuse. A subsequent hearing was held at which time petitioner's request for expungement was denied. The court held that there was substantial evidence to support the indicated report of child abuse based on the testimony of the niece and a county children and youth social service agency investigator. However, the court addressed the standard that must be met in order for an indicated report of child abuse summary to be maintained on the ChildLine Registry and held that substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry. The court was unsure whether that standard was met in the case.

The court held that, “An indicated child abuse report impacts upon three competing interests: (1) the child, (2) the accused perpetrator, and (3) limited government officials, law enforcement and individuals. The Pennsylvania General Assembly has clearly stated that the lowest evidentiary standard is to be applied where the safety and well-being of the child is in question. Accordingly, any doubt of harm will be resolved in favor of providing protection to the child. However, completely absent from the Child Protective Services Law, 23 Pa.C.S. § 6303(a), is the standard of proof required to maintain designated information from the indicated report on the ChildLine Registry or to disclose it to limited outside third parties.”

Because of this unclear standard, the court vacated the order denying petitioner's appeal and remanded the matter to DPW for a hearing to determine whether there was clear and convincing evidence to maintain disclosure of petitioner's child abuse on the ChildLine Registry.

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April 13, 2012

Arkansas Supreme Court OK’s Sex Between Teachers and 18-Year Old Students

The Supreme Court of Arkansas recently held that the State could not criminalize sex between consenting adults, even if one is a teacher and the other an 18-year old student.

Paschal v. State of Arkansas, 2012 Ark. 127, evolved from the conviction of Defendant David Paschal, a high school History and Psychology teacher who engaged in a consensual sexual relationship with an 18-year-old student over a five-month period. Paschal was initially convicted and sentenced to 30 years in prison.

On appeal, the state Supreme Court held, however, that Ark. Code Ann. § 5-14-125(a)(6) Supp. 2009), as applied to a high school teacher who engaged in a consensual sexual relationship with an 18-year-old student, who was an adult under Ark. Code Ann. § 9-25-101(a) (Repl. 2009), infringed on the teacher's fundamental right to privacy and was not the least restrictive method available for the promotion of the State's interest; therefore, it was unconstitutional.

“Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts,” the Court wrote in the majority opinion.

The court reversed and dismissed the convictions for sexual assault in the second degree.

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July 1, 2010

Superior Court of Pennsylvania Upholds Act which Allows for Civil Detainment of Offenders Deemed Sexually Dangerous

The Superior Court of Pennsylvania recently heard a case which challenged Pennsylvania Statute, Pa. C.S. §6403, which allows for the civil detainment of those deemed sexually dangerous. In Re A.C. involved an appellant sentenced to one year of involuntary in-patient treatment for potentially sexual violence. In accordance with the Act, the defendant must have been adjudicated delinquent as a minor for an act of sexual violence, have been sentenced to a juvenile facility until age 20, and be found to be in need of involuntary treatment due to mental abnormality or personality disorder. Those who qualify under the Act are to be evaluated by the Sexual Offender Assessment Board on an annual basis. According to the act, these evaluations can continue perennially until evidence of sexual danger by the defendant no longer exists.

In the case cited above, the defendant was examined by the Sexual Offender Assessment Board in 2004 and was deemed to have a mental disorder which resulted in a serious deficiency in his ability to control sexually violent behavior. Specifically, the Board found that defendant would have rape fantasies, which exemplified defendant’s hidden sexual aggression.

The defendant challenged the Act on its constitutionality. Defendant argued that the Act infringed upon his liberty interest, specifically the indefinite continuation of the in-patient treatment. The Court held that there is a compelling interest of the Government to detain those deemed sexually dangerous as protection for the greater public. The Court held that so long as a person is deemed to suffer from such a mental disorder, they will remain dangerous to the public. The detainment of said individuals is a small price to pay for the safety of the public, according to the Court. The Superior Court affirmed the lower court’s ruling, thereby upholding Pa. C.S. §6403 as constitutional. It will be interesting to see whether or not the case is brought before the Pennsylvania Supreme Court on appeal.

Those convicted of crimes are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected during legal proceedings. If you have been charged with, or convicted of a sexual offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.

June 10, 2010

Supreme Court of the United States Rules Prisoners Deemed Sexually Dangerous May Be Detained Beyond Sentence

The Supreme Court of the United States recently decided the case of U.S. v. Comstock, involving four men who were convicted on child pornography and/or sexual abuse of a minor charge(s). The men were convicted under the “Adam Walsh Act”, signed into Federal law in 2006. The Act allows for the civil detainment of sexually dangerous federal inmates, beyond the sentences imposed upon them by the Courts. The Act was challenged by the inmates on Constitutional grounds, the inmates arguing that Congress overstepped its authority by instituting such a law. The Federal District Court agreed with the inmates, and a subsequent appeal to the Circuit Court resulted in a similar holding. The United States then appealed to the Supreme Court who elected to hear the case. The Court also elected to grant an injunction last year, on the release of sexually dangerous prisoners, pending the Courts decision in Comstock.

The Court examined the portion of the Act in question under a Constitutional analysis. It is important to note that the only part of the Act challenged by the inmates was the section regarding civil detainment; the Act also provides for a national registry of sex offenders and other societal protections, not challenged by the inmates nor considered by the Court.

The Court overturned the lower court decisions, holding Congress was well within their Constitutional rights to create such legislation. The Court considered the detainment clause under five separate analyses. First, the Court found that although the Constitution does not expressly give Congress the power to imprison violators of federal crimes and maintain the security of those not imprisoned but who may be affected, there is a broad authority to do both of those things under the necessary and proper clause of the Constitution. In other words, Congress may create legislation which is necessary and proper to protect those members of society who would be put in danger by the release of sexually dangerous prisoners.

Second, legislation is in place which allows for the detainment of mentally ill prisoners who are deemed too dangerous for release. The Court analyzed the established statute and compared it to the Adam Walsh Act, finding similarity between the two. The Court reasoned that since sexually dangerous prisoners can be deemed to have a mental illness, the previously established statute was precedent for the detainment of those deemed sexually dangerous.

Third, the Court found that Congress has the responsibility to protect the safety and welfare of society. Fourth, the Court held that the Adam Walsh Act does not violate the Tenth Amendment as an impingement on States’ powers.

Finally, the Court rationed that the Act is narrowly tailored and does not provide for general police powers. The Act applies solely to those prisoners deemed sexually dangerous and who would pose a risk to society if released. The Act is a narrowly tailored means of accomplishing the goal of protecting society, and only applies to a small percentage of people, already imprisoned by the Federal Government.

In conclusion, the Supreme Court has held that federal inmates may be detained beyond their sentences if deemed sexually dangerous and a threat to society. The Adam Walsh Act has been deemed Constitutional by the Supreme Court and as such, applies to federal inmates convicted of sexual offenses.

Those convicted of crimes and/or imprisoned are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney not only ensures a defendant’s rights are protected during legal proceedings, but also while imprisoned and beyond. If you have been charged with, or convicted of a sexual offense, you still have constitutional rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.

February 22, 2010

Supreme Court of the United States Hears Arguments on the Detainment of Sexual Predators

The Supreme Court recently heard arguments in United States v. Comstock, an appeal brought by government prosecutors against four defendants who had completed their prison sentences for possession of child pornography and/or sexual abuse of a minor, but were still being held as “sexually dangerous.” The four defendants were arrested, charged and convicted under the Adam Walsh Act; legislation enacted in 2006 which increases penalties for certain crimes against minors, including child pornography. Comstock only challenges the provision of the legislation which allows for the indefinite detainment of those deemed sexually dangerous.

Government prosecutors argued vehemently that the Government has a responsibility to ensure sexual predators are not released into the public, in a society where the recidivism rate for sexual offenses remains high. Precedent was argued, in that inmates who suffer from highly contagious diseases have had their confinement extended beyond their sentences due to the danger they pose to outside society. A comparison was made between communicable diseases and sexual deviation which prosecutors argued is a mental illness. According to federal prosecutor Elena Kagan, it is the government’s responsibility to ensure imprisoned individuals are released responsibly into society.

Many were shocked by the Supreme Court’s choosing to hear the appeal in Comstock, as lower courts had ruled that continued confinement of federal inmates, who have completed their sentences, overstepped the government’s authority. The government cannot constitutionally detain citizens due to fear they will commit a crime without evidence to justify their suspicions. Mental illness alone cannot be grounds for confinement without some showing of a risk posed by the defendant. Other constitutional issues to be considered are potential violations of the Bill of Rights, for example the Fourth Amendment right to due process and the Eighth Amendment ban on cruel and unusual punishment. A criminal sentence is generally determined based on established statutory guidelines. Many mitigating and aggravating factors are considered when determining the sentence of a convicted defendant. A Supreme Court reversal of the lower courts’ decisions in Comstock would essentially void the sentencing process, as defendants who complete their mandated sentences could suffer further confinement regardless of the term of imprisonment they were given. Conceivably, a convicted sex offender, sentenced to five years imprisonment, could serve a life sentence based on their perceived threat to society upon release. Justice Scalia went as far as to say that allowing such practice is a recipe for “the federal government taking over everything.”

Those convicted of crimes are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney protects a defendant’s rights during legal proceedings, while imprisoned and beyond. If you have been charged with, or convicted of a sexual offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will ensure are not infringed upon. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.

October 19, 2009

United States Court of Appeals Holds Registration and Reporting Requirements of SORNA Unconstitutional As Applied to Adjudicated Juveniles

The Sex Offenders Registration and Notification Act, otherwise known as SORNA, was enacted by Congress in 2006 as part of the Adam Walsh Child Protection and Safety Act; legislation enacted “in order to protect the public from sex offenders and offenders against children”. SORNA establishes a national database of sex offenders, requiring anyone convicted of certain sex offenses to register as an offender and report to law enforcement authorities every ninety (90) days for twenty-five (25) years. The Attorney General was given the authority by Congress, and accordingly chose to apply the registration and reporting requirements of SORNA retroactively to those with prior convictions of certain sex crimes. The Attorney General further applied the SORNA requirements to those convicted as juveniles, regardless of whether they had been adjudicated.

The Federal Juvenile Delinquency Act has long been in place in our justice system. It was created with the intention of removing juveniles from the ordinary criminal justice system in hopes of rehabilitation and to assist troubled youths in becoming productive adult members of society. As part of the Act, juvenile offenders generally do not have their names or a picture released to the public when charged with most criminal offenses and further safeguards the record of juvenile proceedings from unauthorized disclosure.

The Constitution of the United States also provides protection against Ex Post Facto laws, or laws which retroactively change the legal consequences of a person’s actions. The Constitution shields citizens from being punished for acts previously committed which did not carry consequence at the time they were committed. However, consequences must be deemed punitive in order for the Constitution’s clause to apply; regulatory or civil application, such as adult registration in a sex offender database, is not considered a violation of the Ex Post Facto clause.

A juvenile who was adjudicated for a sex offenses which he committed between the ages of thirteen (13) and fifteen (15), was required to register in the national sex offender database as per SORNA’s requirements. The juvenile’s offenses constituted aggravated sexual assault due to the young age of the victim. The Juvenile was adjudicated delinquent and sentenced to two (2) years detention in a juvenile facility, to be followed by supervised release; the adjudication occurred one (1) year prior to the passage of SORNA. As per the FJDA, the juvenile’s record was sealed.

On appeal from the District Court’s imposition of the SORNA requirement upon the juvenile, following his adjudication for delinquency, the United States Court of Appeals for the Ninth Circuit held that applying the SORNA requirements to the appellant violated the Ex Post Facto clause of the Constitution. The Court discussed the difference between applying SORNA retroactively to adults versus adjudicated juveniles. The FJDA seals a juvenile’s criminal record upon adjudication, allowing only authorized personnel to view juvenile offenses of an individual. The FJDA provides this protection in hopes of rehabilitating juveniles so they can become productive adults, rather than burden their early adult lives with a criminal record which would affect employment, credit, home rental and purchase, etc. Contrarily, an adult criminal record is open to the public upon search.

Based upon this analysis, the Court held application of SORNA’s registration and reporting requirements unconstitutional as applied to adjudicated juveniles, as the effect would be punitive rather than merely regulatory. The Court also mentioned that an opposite finding could require juvenile offenders, adjudicated decades ago, to register; potentially ruining families, businesses, and the lives of those who have been successfully rehabilitated.

Sexual Crimes

Sexual Crimes are serious matters in the Commonwealth of Pennsylvania, as well as throughout the United States. These crimes carry harsh penalties. In addition to prison sentence, a convicted offender may be subject to “Megan’s Law”, which is intended by the Pennsylvania General Assembly to “protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood”. Further, offenders may also be subject to a national sex offender registration database under the Federal SORNA Act.

Sexual offenses in Pennsylvania are serious crimes which carry many substantial penalties if you are convicted. An experienced Pennsylvania Criminal Defense Attorney can defend you against these charges.

August 24, 2009

Third Circuit Court of Appeals Holds Use of an Adult Intermediary for Purposes of Child Pornography Constitutes Attempt under United States Statute

A recent Third Circuit decision set a precedent that using an adult intermediary, to plan sexual encounters with a minor, constitutes attempted enticement of a minor and violates 18 U.S.C. §2422(b). The relevant portion of the statute reads that whoever uses means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in sexual activity that is illegal, or attempts to do so, shall be fined and imprisoned for no less than ten (10) years under statutory guidelines.

The decision in United States v. Brian Lee Nestor involved a man (“Nestor”) who placed an advertisement on Craigslist seeking “family fun”. A Pennsylvania State Police officer, trained in recognizing code for the sexual abuse of minors and child pornography, identified “family fun” as seeking a parent, guardian, or other adult with influence over a minor, to allow said minor to participate in sexual conduct or child pornography with the person placing the advertisement. The officer began a correspondence with Nestor, choosing to involve the FBI in the investigation as well, upon which a meeting was scheduled at Nestor’s home between himself and who he thought to be a stepfather and stepson. Also contained in the correspondence were instructions on how to elude police detection, and a request by Nestor that the stepfather bring child pornography to the meeting.

Nestor was arrested and charged with violating 18 U.S.C. §2422(b) and violating a possession of child pornography statute. Nestor pled guilty to the child pornography charge, but challenged the other violation based on his dealings with an adult intermediary, rather than knowingly persuading, inducing, enticing, or coercing a minor. Nestor’s motion for acquittal was denied at trial, for which he appealed the Trial Court’s decision to the Third Circuit Court of Appeals.

The Third Circuit held that Nestor had taken substantial steps to put him in direct contact with a minor, so that he could then attempt to persuade, induce, entice, or coerce the minor into illegal sexual activity. Nestor did so by using an internet website, an established means of interstate commerce. The Court cited to U.S. v. Tykarsky where a defendant who challenged his conviction of 18 U.S.C. §2422(b) because he had been dealing on-line with an undercover agent, and not an actual minor, was held to have been in violation of the statute nonetheless. The Court therefore held that “it is of no moment that Nestor never dealt directly with his intended child victim.” The fact that Nestor intended to violate the statute is enough to uphold his conviction, even though no actual minor was ever involved. The Court further stated that even if the statute were construed more strictly or narrowly, the substantial steps taken towards the violation would, at the least, constitute an attempt of the crime. The Court therefore upheld the sentence of the District Court.

Crimes against Minors

Knowingly persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity is a violation of both State and Federal laws. If you are being investigated or have been arrested and charged with sexual abuse of a minor, attempting to do so, or other crimes against minors such as possession of 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.

September 2, 2008

Former Philadelphia Area Camp Counselor Indicted on Charges of Child Pornography

A former Friends’ Central camp counselor was recently indicted on charges of distributing child pornography. The defendant was under FBI investigation for three months prior to being arrested earlier this month. The FBI used an undercover agent, posing as the mother of a thirteen year old girl, as part of their investigation. In the complaint, it is alleged that the defendant told the agent he had aspirations of becoming a teacher and that his being around little girls would be a “fringe benefit”.

The defendant allegedly told authorities that he began looking and naked pictures of underage girls a few years ago and would use chat rooms to meet people with similar interests. He would allegedly trade pictures with the people he met online as well. The complaint further alleges that when he was 18-years old, he touched a child as he was helping her change into her swimsuit; he described the touching as “a great feel”. Authorities claim to have found over 100 images of child pornography on the defendant’s computer; the girls ranging in age from five to thirteen.

He has been held without bail since his arrest earlier this month. If convicted on the most serious counts of child pornography, he faces a mandatory five years in prison and a potential maximum sentence of twenty years.

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. Contact the Law Offices of Marc Neff immediately.

August 29, 2008

Man Convicted of Sexual Assault in Philadelphia, Extradited to Idaho to Stand Trial on Additional Charges of Rape

Jeffrey Marsalis, convicted on two-counts of sexual assault by a Philadelphia, Pennsylvania Court of Common Pleas judge last year and sentenced to 10 ½ to 21 years in prison, has been removed from the Forest County Correctional Institution in Pennsylvania and extradited to Blaine County, Idaho to face a third rape trial. Marsalis lived in Philadelphia between 2003 and 2005 where he attended Drexel University. Authorities alleged that during that period, Marsalis drugged and sexually assaulted at least 10 women; most of whom he met through the internet dating site “match.com”. At trial, seven women testified against Marsalis, claiming that Marsalis would pretend to be a doctor or an astronaut. His former fiancée also testified that Marsalis had duped her by claiming to be a CIA agent. The jury convicted him on two counts of sexual assault.

Marsalis now is accused of raping a woman who worked with him at a ski resort in Idaho. Marsalis worked as a security guard and allegedly committed the October 2005 rape in the employee dorm of the resort. Marsalis fought the extradition proceedings against him, but lost at a hearing last month in Idaho. He will now face his third jury trial for rape within the next 180-days, said Blaine County Prosecuting Attorney Jim J. Thomas. He will remain in a Blaine County, Idaho jail until his trial commences.

Extradition

Extradition, or rendition as it is commonly referred to when dealing between different states, is the process by which one nation or state requests the surrender of a suspected or convicted criminal from another nation or state, to face prosecution for crimes committed in their jurisdiction. There are laws which govern the process of extradition. Criminal laws often differ slightly between states, and differ greatly between nations; extradition between nations is governed by treaty. Extradition is a complicated area of law, requiring the expertise of an experienced and competent criminal defense attorney.

For a confidential consultation, contact the Law Offices of Marc Neff immediately via telephone at (215) 563-9800 or e-mail Marc@nefflawoffices.com. We will assist you through your extradition proceedings, as well as all other aspects of your defense.

June 21, 2008

R. KELLY NOT GUILTY IN CHILD PORNOGRAPHY TRIAL

Seven hours was all it took for a jury to acquit singer R. Kelly of 14-counts of child pornography, a verdict six-years in the making. Kelly was accused of videotaping a sexual encounter with a female who allegedly was 13-years old at the time. Both Kelly and the now 23-year old victim each denied their alleged participation in the video. Defense attorneys also argued that the man in the video did not have a mole on his back, a feature their client in fact did have.

Neither Kelly nor the alleged victim testified during the month-long trial. Relatives of the alleged victim gave conflicting testimony as to whether the female on the tape was in fact who prosecutors claimed she was. The prosecution’s star witness was a woman who claimed to have participated in three-way sex with both Kelly and the alleged victim; however defense attorneys were able to paint the witness as incredible. Kelly’s attorneys proved to the jury that the witness was an extortionist, threatening R. Kelly with her testimony unless he paid her hundreds of thousands of dollars. Attorneys also claimed that the witness stole their client’s $20,000 wrist-watch.

R. Kelly faced 15-years in prison if convicted on all counts of child pornography. Jury deliberations began on Thursday afternoon last week and continued Friday morning until a verdict was finally reached. One juror told the press, following the verdict, that the jury was split just hours before the verdict. In the end, the jury determined that there was just not enough evidence to prove that R. Kelly and the alleged victim were in fact in the video.

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.

June 17, 2008

PENNSYLVANIA OUTLAWS NAKED PICTURES OF MINORS TAKEN BY CAMERA PHONES

Pennsylvania State Police are dealing with a growing problem in today’s society; teens taking pictures of themselves or others involved in sexual acts and transmitting the images to friends via cell phone. The problem has become so extensive that schools have asked for help from the State Police Cyber Crimes Division. Troopers have been dispatched to assist in the finding and destruction of cell phone images at many Pennsylvania school districts, and according to State Trooper Paul Iannace, the problem is draining the division’s already limited resources.

The problem exists not only in Pennsylvania, but nationwide. Last month, a seventeen-year old was arrested in Wisconsin for possession of child pornography, sexual exploitation of a child, and defamation, after he posted nude pictures of his ex-girlfriend onto Myspace from his cell phone. Pennsylvania State Troopers were dispatched to the Parkland School District, near Allentown, Pennsylvania, to remove video and images of two underage girls from nearly forty student-cell phones. In Allegheny County, Pennsylvania, troopers showed no lenience when they arrested a fifteen-year old girl in 2004 for posting nude pictures of herself on the internet.

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, a Pennsylvania Criminal Defense Attorney can help. There are defenses which are available to you, so do not hesitate to contact a Pennsylvania Criminal defense Attorney immediately.

June 11, 2008

SENATE CONSIDERS BILL REQUIRING TECHNICIANS TO REPORT CHILD PORNOGRAPHY

The Michigan State Senate took testimony regarding a bill which if passed, would require computer technicians to report any child pornography they find on a client’s computer. According to a Michigan news source, the bill will be introduced along with testimony from Dan Tomaszewski, whose Georgetown Township-based Computer House Calls reported child pornography found last year on a client’s computer, despite there not being a law requiring such action.

Although there are no Michigan laws requiring computer technicians to report child pornography they find on client’s computers, laws are currently in place to provide legal protection to the technicians should they decide to do so. The proposed law would not allow technicians to actively search for child pornography on a client’s computer, but would require them to report child pornography found within the scope of their employment.

Opposition will likely come from those who feel the bill is an invasion of privacy, as did when South Carolina passed a similar law in 2001. Michigan Senator Wayne Kuipers, who is proposing the bill, argues that the bill will act as an additional tool for law enforcement, which currently has trouble finding those in possession of illegal child pornography. To date, similar laws have been passed in Arkansas, Missouri, Oklahoma, South Carolina, and South Dakota.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photography, 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, a Pennsylvania Criminal Defense Attorney can help. There are defenses which are available to you, so do not hesitate to contact us immediately.

June 10, 2008

PENNSYLVANIA SUPREME COURT TO DEFINE "CONTROL" OF CHILD PORNOGRAPHY

A Delaware County, Pennsylvania man is challenging his conviction of “sexual abuse of children by possession and control of child pornography” by disputing the criminal statute’s definition (or lack there of ) of “control”. Anthony Diodoro admittingly viewed thirty images of child pornography on his computer, but argued that he did not save the images to the hard-drive and therefore neither possessed, nor controlled the images. Rather, the files were discovered in Mr. Diodoro’s web browser’s cache file, where files are automatically saved. Mr. Diodoro was unaware that the files were saved to the cashe.

The Pennsylvania state criminal statute relevant to child pornography is violated when a person produces, distributes, possesses, or controls sexually explicit images of children. The statute, however, does not define the terms “control” and “possess”. Justice Baer compared the scenario to a hypothetical in which a person visits an adult bookstore or has material sent to his home. Justice Eakin considered whether Mr. Diodoro’s having the opportunity to change the size of pictures on his screen demonstrated control.

The defense has argued that the statute should be voided for vagueness. The statute’s use of undefined terms does not give a person notice of what is considered criminal.

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 person 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.

June 2, 2008

PENNSYLVANIA MAN SUCCESSFULLY CHALLENGES STATE’S “MEGAN’S LAW”

An anonymous defendant successfully challenged Pennsylvania’s Megan’s Law statute and was found not to be subject to its community notification provision. The man, convicted of sexually assaulting an eleven year-old girl in New Jersey, was sentenced to five years probation and parole supervision for life. In the sentencing report, the judge found defendant was unlikely to repeat such offense and that this incident was likely the result of intoxication.

The man chose to serve his sentence in Pennsylvania in accordance with the Interstate Compact concerning Parole and Probation, which allows a person, upon approval, to serve a probation or parole sentence in a state other than where the crime was committed. Pennsylvania’s Megan’s Law requires that only sex offenders convicted in Pennsylvania that are found to pose a risk of repeat offense be subject to the community notification provision. However, all sex offenders transferring their sentence from out-of-state are subject to community notification.

The Third Circuit, Court of Appeals, accepted defendant’s argument that this contradiction in Pennsylvania’s Megan’s Law violated the United States Constitution’s Equal Protection Clause. Had the same crime occurred in Pennsylvania, defendant would not have been subject to community notification. Therefore, subjecting the man to community notification simply because he transferred his sentence from New Jersey did not promote any legitimate state interest and violated the man’s constitutional rights.

Sex Crimes

Sex Crimes are serious matters in the Commonwealth of Pennsylvania, as well as throughout the United States. These crimes carry harsh penalties. In addition to prison sentences a convicted offender may be subject to “Megan’s Law”, which is intended to “protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood”.

Sex Offenses in Pennsylvania are serious crimes which carry many substantial penalties if you are convicted. An experienced Pennsylvania Criminal Defense Attorney should defend you against these charges.