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Proving “Knowing Distribution” of Child Pornography

Child pornography is typically distributed in some of the shadier parts of the Internet. One common way to get child pornography is through peer-to-peer file sharing programs like Limewire and Gigatribe. These programs allow users to share their material with each other directly rather than through a central public server. But using peer-to-peer technology can also mean the difference between mere possession of child pornography and distribution, which carries a five-year mandatory minimum sentence of incarceration in federal court.

“Distribution” can also raise a child porn sentence under the U.S. Sentencing Guidelines even if the mandatory minimum does not apply. This is called a “sentencing enhancement” and adds more than 20 percent to a given sentence. The Second Circuit Court of Appeals was recently called on to determine when the distribution enhancement applies: does the defendant have to know that his peer-to-peer program is making illegal child pornography available to others? The appeals court said yes. In U.S. v. Baldwin, the defendant admitted to the police that he had seen child pornography on his computer. But he denied any awareness that his computer was distributing the material to others. The judge found that he should have known and that the distribution to others was “self-evident.” Not enough for the enhancement to apply, says the Second Circuit. In order to increase the sentence, the sentencing court must make an explicit finding that”a defendant knew that his  use  of  P2P  software  would  make  child‐pornography  files accessible to other users.” Note that this “knowledge requirement” in criminal cases is distinct from intent. The defendant could not have meant to or intended to distribute the illegal pornography; it was enough for the enhancement if he knew it was being distributed.

The case will go back to the district court to determine whether the defendant really did not know that his file-sharing program distributed the material.


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