Academic journal article Harvard Law Review

Child Pornography, the Internet, and the Challenge of Updating Statutory Terms

Academic journal article Harvard Law Review

Child Pornography, the Internet, and the Challenge of Updating Statutory Terms

Article excerpt


It is uncontroversial that the formal power to define federal crimes resides exclusively with Congress. (1) But federal criminal statutes are often sufficiently broad or indefinite that it is left to the courts to clarify what a particular law will mean in practice. (2) Courts make criminal law more definite in many ways, including by determining what facts are sufficient to establish the substantive and mens rea elements laid out in the statutory text. Federal courts have engaged in this type of crime definition in the field of child pornography law. In doing so, they have corrected imprecision in the statute's text and engaged in an ongoing process of law development that has proved responsive to the changing nature of the underlying behavior that the statute criminalizes.

Since its inception, the federal child pornography act has included the mens rea term "knowingly" in defining each of the offenses prohibited by 18 U.S.C. [section] 2252. (3) Congress intended the mens rea term to help prevent the prosecution and conviction of inadvertent recipients of illicit materials. In the years since the statute was drafted, the expansion of personal computer ownership and internet use have fundamentally transformed the ways in which child pornography is collected and exchanged, increasing the likelihood of mistaken receipt. The mens rea term "knowingly" is sufficiently flexible to accommodate this technological change and to continue to serve the purpose for which Congress intended it--distinguishing between innocent and culpable conduct. Many courts have quietly but adeptly made the necessary updates to the statute by refining the evidentiary standards they use to define the statutory elements in more concrete terms. Some aver that the statute has outlived its usefulness and that courts are impermissibly performing a legislative task through their sufficiency-of-the-evidence jurisprudence. (4) This Note argues that courts' evidentiary standards help to implement congressional intent by protecting accidental or mistaken recipients while retaining the capacity to prosecute and convict truly culpable offenders. Courts are not only competent to ensure that the statute continues to operate effectively in light of new factual circumstances, but they also have an obligation to make the necessary adjustments in the absence of explicit congressional revision of the statute. (5)

Part II of this Note briefly considers the function of the mens rea element in criminal statutes and the congressional vision for the role of the "knowledge" term in 18 U.S.C. [section] 2252. Part III outlines how developments in computer technology have created new pathways through which individuals can inadvertently receive child pornography. In light of these new possible scenarios of innocent receipt and possession, Part IV evaluates how federal courts have analyzed evidence of knowledge presented in child pornography prosecutions. Part V argues that courts' use of higher evidentiary standards for knowledge is supported by the standards' practical efficacy and their alignment with the purposes of the statute and the role of the judiciary. Part VI concludes.

II. THE "KNOWLEDGE" ELEMENT OF 18 U.S.C. [section] 2252

Federal courts have long required almost all criminal statutes defining offenses to include a mens rea term. (6) The inclusion of a mens rea element helps to sort cases that span a wide range of human behavior and to provide some form of moral evaluation for different individuals and their actions. (7) The Supreme Court considers this function of mens rea so important that it may read a state-of-mind component into a criminal statute that lacks an express mens rea term. (8) The Court has also recognized that the mens rea determination is a question of fact, leaving to the factfinder the responsibility of evaluating whether the defendant acted with the requisite intent. (9) The intent element of criminal offenses "serve[s] a key screening function in our criminal justice system. …

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