Protecting Child Victims' Rights as Vigorously as Criminal Defendants' When Prosecuting Possession or Distribution of Child Pornography
Willmore, Kiel, Washington Law Review
Abstract: Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state's evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims' privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 ("H.B. 2177"), which amends the legislative findings on the child pornography epidemic, and places certain limits on the discovery of child pornography evidence. These limitations are found in the new statute RCW 9.68A.170. Washington's law is modeled closely on the Adam Walsh Child Protection and Safety Act of 2006, which has withstood numerous federal constitutional challenges. This Comment argues that the Washington State Supreme Court should uphold RCW 9.68A.170 as constitutional, and overrule its earlier decisions in State v. Boyd and State v. Grenning, which created a per se rule requiring the State to provide child pornography evidence to criminal defendants.
Weldon Marc Gilbert enticed adolescent boys with exotic trips, rides in airplanes and boats, then allegedly lured them into his home where he filmed himself sexually abusing them.1 His case is pending before the Pierce County Superior Court.2 From his jail cell, Gilbert petitioned the court to receive both copies of his videos and a means to view them. Washington's criminal discovery rules3 - as construed by the Washington State Supreme Court in State v. Boye? and State v. Grenning5 - entitle Gilbert to receive and view a copy of the child pornography evidence without any showing that his viewing the materials is necessary to his defense.6
Similar to Washington State law, a defendant charged in federal court with possession of child pornography before 2006 would routinely receive a copy of the pornographic evidence to review in preparation for trial.7 The government's surrender of child pornography evidence results in several problematic consequences. Most troubling, every viewing of the pornography constitutes further victimization of the children depicted in the obscene images, regardless of whether the viewing occurs in preparation for trial. There is also a custody and security risk: once the government distributes the pornography to the defense and other expert witnesses, there is no guarantee that the materials will not be further disseminated. Even if unlikely, defense counsel and expert witnesses who receive the pornography risk future prosecution if they fail to return the evidence to the court. Another dilemma - albeit commonly seen as incurable - -is that those prosecuting child pornography cases violate federal law themselves whenever they copy and distribute the pornographic evidence.
The United States Congress addressed some of these troubling concerns by passing the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act" or "Act").8 Congress made lengthy and important findings regarding the unquestionable vice of child pornography, and recognized the need to stamp out its duplication and distribution.9 Specifically, Congress determined that viewing child pornography constitutes a renewed violation of the child victims' privacy and a repetition of their abuse.10 In response to these findings, Congress created a special exception to the discovery rules in cases involving child pornography. In most circumstances, the Act prohibits the government from reproducing the evidence and mandates securing the evidence in a government facility. However, the Act requires the government to make the materials "reasonably available" for examination by the defense, or else produce a copy of the pornographic evidence upon a showing that receiving a copy is essential to the defense. …