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Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense LawyerEmail The Author

Colorado Sexual Exploitation Prosecution - 18-6-403 - Understanding Peer to Peer File Sharing and Distribution

Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution

Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution – The investigation and prosecution of Colorado Sexual Exploitation of Children cases usually begins with the police invading the suspect’s computer using so called “peer to peer” networks.  This article helps understand the role of these networks in proving the underlying charges. 

 

18-6-403 – The Colorado Crime Of Sexual Exploitation Of Children

The focus of any complete understanding of the Colorado crime of sexual exploitation of children is to understand the various elements of the offenses that make up the different chargers that can be brought under the law. As always I start with the law – as it is given to a Colorado criminal jury at the end of a trial for the charge of Sexual Exploitation of Children 18-6-403.

The elements of the crime of sexual exploitation of children are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. [[caused] [induced] [enticed] [permitted] a child

to [engage in] [be used for]

5. any explicit sexual conduct for making any sexually exploitative material.]

-or-

4. [[prepared] [arranged for] [published] [produced] [promoted] [made] [sold] [financed] [offered] [exhibited] [advertised] [dealt in] [distributed] any sexually exploitative material].

-or-

4. [possessed or controlled any sexually exploitative material for any purpose
5. and was not a peace officer or court personnel in the performance of his official duties or a physician, psychologist, therapist, or social worker licensed in the state of Colorado, in possession of the materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site].

-or-

4. [possessed with the intent to [deal in] [sell] [distribute] any sexually exploitative material].

-or-

4. [[caused] [induced] [enticed] [permitted] a child to [engage in] [be used for]
5. any explicit sexual conduct for the purpose of producing a performance].

Sexual exploitation of a child by possession of sexually exploitative material is a Class 6 felony (Section 18-6-403 (5), C.RS.)

A second and or subsequent offense of sexual exploitation of a child by possession of sexually exploitative material, or a first or subsequent offense of possession of  more than 20 different items qualifying as sexually exploitative material (Section 18-6-403 (5), C.R.S.) is a Class 4 Felony.

Knowingly causing a child to engage in or be used for explicit sexual conduct or trafficking in sexually exploitative material (Section 18-6-403 (5), is a Class 4 Felony.

Avoiding The Enhancement of Of The Crime To “Distribution” of Child Pornography

Every Denver Area Colorado District Attorney’s office has a felony “intake division” where prosecutors make the decision to either file Class 6 Felony Sexual Exploitation Of Children or Class 4 Distribution of Sexual Exploitation of Children charges. This is an important  decision – and it has important ramifications on the later resolution of the case.

Whether to charge possession of child pornography or the distribution of child pornography in the context of file sharing networks, may finally impact the ultimate decision to accept a plea bargain offer or to take the case to trial .

Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution – Does The Act Of File Sharing Meet The Elements of Distribution?

Most local prosecutors view the PASSIVE sharing of child pornography through peer-to-peer networks as distribution. But the prosecutor need NOT file the enhanced charge. A thoughtful prosecutor, after carefully analyzing all of the available evidence, including the results of computer forensic examinations may decide NOT to charge the more serious crime of distribution – the DA has discretion at this critical juncture.

The accused in these cases often argue that the ACT of downloading images from a peer-to-peer network and storing them in his shared folder does NOT meet the elements of distribution.

Cases appealing this issue uniformly meet the same result – the analogy of sharing files on peer to peer networks is often made to a self-serve gas station.

While the owner of the gas station may not “push” the visitor to fill up – he gives passersby free access to the pumps, and while he may not even be present at the station at all, the road sign allows all passersby to take the gas – (the operation is “self-serve”), the law views this as a passive form of  “distribution.”

Does The Defendant KNOW That He Is File Sharing On The Peer To Peer Network?

Is it a defense to Sexual Exploitation of a child – that the defendant is unaware of the operation of the peer to peer file sharing is therefore innocent of distribution? The answer is yes. Ignorance of the knowledge of the operation of the peer-to-peer networks can be successfully argued as a defense to criminal culpability. Many of these programs are confusing to the operator of the peer to peer network and it may not be clear to the operator just exactly HOW TO STOP the program from sharing the images.

Questions arise  – First -does the program WARN the user that the photos or videos in question share the images by default? Second – is this a program that requires affirmative action is needed to make the shared folder accessible by others?

The Defendant’s Knowledge Is Often Proved At The Interrogation Of the Defendant During The Execution Of The Search Warrant

The prosecution often proves their case for the knowledge requirement at the underlying forensic examination and interview at the time of the seizure of the computers pursuant to a search warrant.  Suspects – later defendants – are often questioned during the warrant’s execution BEFORE a defendant is arrested. It is THEN that the suspect is questioned about his or her knowledge of the operation of the peer to peer software. Defendant’s should “lawyer up” at this time and NOT make ANY statements to law enforcement at this critical time.

Possession, Even Distribution Does NOT Mean The Creation, Manufacture, or Preparation Of Child Pornography

The most serious charge under Colorado Law in this area is notably the creation or “preparation” of child pornography.

As noted above – the elemental jury instruction tracks the language of section 18-6-403(3)(b) and provides as follows:

 (1) That the defendant,

 (2) in the state of Colorado, on or about June 9, 2005 and July 18, 2005 in El Paso County,

 (3) knowingly,

 (4) prepared, arranged for, published, produced, promoted, made, sold, financed, offered, exhibited, advertised, dealt in, or distributed 

(5) any sexually exploitative material.

The Colorado case on this issue is People v, Mantos. Follow this link.

In Mantos, the Colorado appellate courts have determined that the use of a peer-to-peer file sharing program does not equate to preparing material under the felony sexual exploitation of a child statute. The use of the computer peer to peer file sharing software does NOT fit within the statutory definition of “prepares” or “arranges for” under the exploitation statute. Producing child pornography requires much more than the sharing of the images.

When Police Access The Target’s Computer – Violation Of Privacy? No.

One defense – often believed to be true by those charged with and prosecuted for the possession and or distribution of these images. They believe that they have a privacy right in files placed in their shared file folders. This flawed perception is based on the belief that law enforcement engaging in a search of the suspect’s computer when looking for images and movies on peer-to-peer networks violate the privacy rights of the suspect.

Courts have routinely rejected this argument, finding that the defendant in essence, is advertising his shared files to anyone else on the network and that officers “searching” inside a defendant’s computer using peer to peer networks are not violating the user’s privacy rights.

Be Wary Of The Thread Of Law Enforcement’s Investigation

Beware of the investigator’s or computer forensic examiners efforts to determine whether sufficient evidence of the defendant’s knowledge of how peer-to-peer file sharing networks work.

The computer forensic examination will consist of a search of the hard drives of the suspect’s computers for specific key words and data demonstrating the INTENT to access child pornography. The presence of certain key words in the peer-to-peer file sharing application could demonstrate an intent to acquire child pornography. If the key words exist outside of the peer-to-peer file sharing network this might eliminate the ACCIDENTAL DOWNLOAD DEFENSE.

The police will seek to evidence of the suspect’s knowledge that includes specific knowledge of the defendant’s computer usage, whether the defendant installed the software program, whether the defendant changed any of the default settings, and whether the defendant admitted to understanding that the peer-to-peer network is based on file sharing.

Did the defendant have something akin to the master sharing option of the peer to peer network is set to “not share.”

Does the type of application used by a defendant have the ability to simultaneously upload files to other users while being downloaded by a defendant, whether the downloaded file is kept in a shared folder; whether there is evidence to determine if a defendant limited access to specific files, that is child pornography, within the shared folder.

Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution

ABOUT THE AUTHOR: H. Michael SteinbergEmail The Author  – A Denver Colorado Sex Crimes Criminal Defense Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

If you are charged with A Colorado crime or you have questions about [shoplifting or grand theft], please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience –  specializing in Colorado Criminal Law along the Front Range.  He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options.  Remember, it costs NOTHING to discuss your case.  Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Important: This article is for informational purposes only and not intended to provide legal advice to any individual or group. Individuals and groups should obtain competent legal counsel from lawyers admitted to practice in the jurisdictions where they are subject to legal process.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …Colorado Sexual Exploitation Prosecution – 18-6-403 – Understanding Peer to Peer File Sharing and Distribution.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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