Lawmakers on the Virginia Crime Commission have been working to fine-tune the state’s child pornography statutes. The members began combing through the law after a judge and two prosecutors were drafting model jury instructions and noticed some ambiguities. The commission’s goal is to help ensure that innocent people are not inadvertently entrapped—and that guilty perpetrators don’t escape conviction.
The law makes it a crime to knowingly possess child pornography, but the word “knowingly” is omitted from another section. Legal Affairs Director Stewart Petoe said that could cause a problem.
“Here’s the hypothetical: A person receives a computer file that contains within it an encrypted child porn image, which is frequently how predators trade these images. Someone receives it innocently. They do not know they possess child pornography. They think it’s just a simple Word file or Excel file or something like that. They forward the file onto others. Well, if it’s a strict liability crime, they’re guilty of the reproduction or the electronic transmission of child pornography.”
The members decided to add “knowingly” to that section. They also found that the law’s word placement could make “lascivious intent” essential for convictions. But Lynchburg commonwealth’s attorney Michael Doucette said that’s not the only motive.
“Any person who is doing it for the money is saying: ‘I’m not getting off on this. I have no lascivious intent. I’m just doing it for the money purposes. You’ve got to show that I had the lascivious intent in doing this, and you can’t do that.’ So I think for those reasons that we need to strike the language ‘lascivious intent.’”
The members agreed. The General Assembly still must approve the revisions before they can take effect.