Whatever one thinks of pornography, most forms are actually legal with the significant exception being child pornography.
More frequently than one would expect, some people wrongly assume that, because it is so readily available on the internet, it must be legal. It is not. It is, however, in fact, much more accessible than ever before. Until recently, people looking for pornography would have to make much greater assertive efforts to obtain it. They could travel to a specialized “bookstore” or send away to have things sent to them in a plain brown wrapper.
Nowadays, it is available instantly at the press of a button on one’s laptop. This may explain why the number of prosecutions for such illegal material has absolutely exploded and is more prevalent in courtrooms today than ever. One prosecutor described such prosecutions as equivalent to “shooting ducks in a barrel.” They are so easy to track down online with such a well-documented provable trail that it makes a defense all the more challenging. The only thing holding back an even greater number of prosecutions is the lack of more law enforcement manpower to monitor online activity.
Surprisingly, a number of people express surprise that the looking at this material online is such a serious crime. They say something to the effect of “But I was only looking at this by myself in the privacy of my room with no one else around. Who am I hurting? How can passively looking at photographs when no one else can see me doing it hurt someone? I would never ever approach or bother a child in person.”
The law clearly does not recognize this sentiment. The answer is that you, personally, just looking at a photo may not think you’re hurting the innocent child in that photo, but somewhere down the line someone else is. And if you weren’t providing an audience or market for that photo, then the actual in-person abuser taking the photo or video might not be creating it for you at his end.
Many others mistakenly believe that, if one looks at child pornography, then “deletes” it from their computer, that they are not in any legal jeopardy because it no longer exists. However, they may not be aware that anyone with knowledge of computers can tell you that a “deleted” item, still exists on the computer hard drive. It just can’t be easily and readily seen or accessed. However, if a computer is seized by the police, their forensic experts using their advanced skills and equipment, can still find it.
In addition to facing possible incarceration for such an offense, one will be required to be placed on the sex offender registry.
There are a number of defenses to be explored if one either has been charged or is being investigated for child pornography charges. For example, it is occurred that innocent people have been charged if a friend, roommate, family member or neighbor or others with access to ones computer used it to look at child pornography without the computer owner’s knowledge. Additionally, it has also happened that online viruses and hidden files have unwittingly placed such material on an innocent person’s computer. Every year that goes by, with the advancements in internet technology, everyone remains increasingly vulnerable to material being unknowingly placed on ones devices. Also, an attorney can investigate whether you or your computer were the object of an illegal search where then the entire case might have to be dismissed.
For these reasons, it is important that one contact an attorney skilled in the defense of these kinds of charges immediately upon learning that an investigation has commenced.
This is how these cases frequently unfold. Usually, unknown to the suspect, law enforcement personnel are monitoring illegal websites including file-sharing sites or perhaps someone has tipped them off. Once they identify users of the site, they get a search warrant, show up at the suspect’s home, and then seize every suspected computer or electronic device. The police very often do not arrest on the spot but rather wait until their forensic staff has examined the devices for illegal material back at the lab. This may very well take a number of months. At that point, if one hasn’t been arrested yet, they will either be arrested at that time or summoned into court.
It is difficult to determine in advance where one will be prosecuted. Some cases are prosecuted in the District Court of Massachusetts while others are indicted to the Superior Court. Still others are prosecuted in federal court.
The three most common charges in Massachusetts state courts concerning such pornography are:
- Possession of child pornography
- Dissemination of child pornography
- Posing a child in a state of nudity
In state court, there is an increasing number of prosecutions for dissemination rather than just mere possession. Some defendants are surprised when they are charged with dissemination because they insist that they never shared their photos with anyone. However, since large numbers no longer find this illegal material on regular websites, but rather on file-sharing sites, they are charged with dissemination. This is because the nature of file-sharing sites is that you can take whatever material you want off of another person’s files and anyone else can take material off of yours. So, even if one is unaware that someone has ever taken files off their site and even if no one ever has, they can still be charged with the more serious charge of dissemination just for having been a member of a file-sharing site.
Concerning the charge of possession of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant purchased or possessed pornographic material of a person under the age of eighteen.
- Pornographic material means visual material of almost any medium that, either actually or by simulation, exhibits: (a) sexual intercourse with a person or animal; (b) sexual contact; (c) masturbation; (d) lewd touching; (e) excretion or urination in a sexual context; (f) sexually sadistic, masochistic or sadomasochistic acts; (g) lewd display of genitals, buttocks, pubic area or female breast(s);
- The defendant purchased or possessed such material knowingly;
- The defendant had knowledge of the nature or content of that material; and
- The defendant knew or reasonably should have known that the child shown in that material was under the age of eighteen.
Concerning the even more serious charge of dissemination of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant disseminated pornography.
- That pornography exhibited a person under eighteen years old in a state of nudity or sexual conduct;
- The defendant knew or should have known the contents of that material.
- The defendant disseminated that material with lascivious intent. Lack of lascivious intent can be proven through evidence of a scientific, educational or medical purpose for a school, library or museum.
- The defendant intended to disseminate that material.
The most serious of all child pornography charges — posing or exhibiting a child in a state of nudity or sexual conduct is a serious charge contains the following elements:
- The defendant: hired; coerced; solicited; enticed; employed; procured; used; caused; encouraged; or knowingly permitted a child under aged eighteen to pose or be exhibited in a state of nudity or sexual conduct.
- The defendant knew or should have known that the defendant was under the age of 18.
- The defendant had lascivious intent.
- The purpose of the defendant’s actions was representation or reproduction in any visual material. Free legal consult
If the case goes to federal court rather than state court, the consequences can often be even more serious. If one is charged with receiving child pornography rather than just possessing child pornography (even though there may seem to be little difference), one will face a mandatory minimum sentence in the federal penitentiary of 5 years. For producing child pornography, one is facing a mandatory minimum sentence of 15 years.
There are two types of indecent exposure charges in Massachusetts. One is a misdemeanor and the other is a felony.
The more minor offense (though still serious) is called indecent exposure and has to do with the actual conduct or behavior. One is charged with the more serious crime of open and gross lewdness and lascivious behavior when one, through that behavior, intentionally attempts to shock and alarm others.
Examples of the misdemeanor of indecent exposure might include urinating in public; more minor public sexual acts; masturbation in a public setting even if one is in their own home or car; having exposed genitalia; or wearing little or no clothing in a setting where the public can see even if it is on private property.
To be convicted beyond a reasonable doubt of this offense, there are three elements that have to be met:
- Exposure of genitals
- Being seen by at least one other person who consider it offensive
- Having it be an intentional act
It has been defined as “an intentional act of lewd exposure, offensive to one or more persons.”
The punishment under Massachusetts General Laws Chapter 272, Section 53 can be a period of incarceration up to 6 months; a $200 fine; probation; an a criminal record.
Although the crime of indecent exposure may be a misdemeanor and would not generally fall under the category of major crimes, it must be challenged aggressively. This is because there is such a serious stigma to being charged with any crime that is considered sexual that it can have severe consequences to one’s reputation and standing in the community. This is aside from the legal consequences. In many ways, a conviction for this misdemeanor can have a more negative impact than a number of more serious felonies because there is such a social taint to being deemed a sex offender.
There can be other repercussions to such a conviction such as the loss of employment, housing or educational opportunities.
If the crime is aggravated, the more serious offense of open and gross lewdness and lascivious behavior can be charged. Although the crime of indecent exposure applies to just the exposure of the genitals, the other crime of open and gross lewdness and lascivious behavior may include not only the genitals, but also the buttocks or female breasts. The key to an open and gross charge is that it must be proved beyond a reasonable doubt that the act was done with the intention to cause shock and alarm in the other person or persons. A victim must testify that he or she experienced shock and alarm and that is not always the case.
A person did not have to set out with the intent to try to knowingly break any law, just that they intended to do the act to cause shock and alarm in another person.
The distinction between the charges of indecent exposure and open and gross lewdness and lascivious conduct is that an indecent exposure case is about the behavior one is committing. An open and gross lewdness and lascivious conduct case is additionally about the impact this behavior has on others.
The maximum penalty for the charge of open and gross lewdness and lascivious behavior is three years in state prison; a $300 fine; probation; and a criminal record.
Even though it is, in effect, a sex offense, someone who is convicted of indecent exposure is not required to sign up for the sex offender registry. Neither does one for a conviction on a first offense charge of open and gross lewdness and lascivious conduct. However, if there is ever a second conviction of open and gross lewdness and lascivious conduct, then registration on the sex offender registry is mandatory.
There are a variety of defenses such as whether the accused person was actually exposed; whether the person charged with the offense was actually in a place where they had an expectation of privacy; and whether the person reporting an incident that resulted in an open and gross charge was actually shocked and alarmed as required particularly if they made no such mention when they first told the police.
If it is eventually determined that the case cannot be dismissed nor is it likely that it can be won at trial, then your attorney can pursue another approach to avoid a more severe sentence or even incarceration. In lieu of such greater punishments, the alternative can be for the accused to be evaluated by experts in the field and then begin a course of treatment that will work on whatever problems or issues the accused might have that resulted in such an offense. Treatment rather than punishment makes a great deal of sense not only to help the accused person, but also to help to keep the public from being subjected to such behavior.
Again, even if one avoids incarceration on either one of these charges, the impact to one’s reputation and the damage to one’s social status within the community on these shunned charges in particular is so disproportionately outsized that it is imperative to leave no stone unturned in trying to avoid a conviction with the best assistance from a veteran attorney with exceptional experience in the defense of sex offense charges such as indecent exposure.
There are several reasons why an individual would appear before the Sex Offender Registry Board. These might include either a hearing to try and get off of the Sex Offender Registry or to try and lower their Sex Offender Registry classification level from either Level 3 or Level 2.
What the Sex Offender Registry Board (SORB) is looking for is to see if you have a track record of going for a longer period of time staying out of trouble, getting treatment and living a life of stability and responsibility.
For example, the best case profile one can present is that of a person who is employed or getting an education, has a family or long-term relationships, friends, active in the community, long-term ties such as not constantly moving, and does a lot of mainstream things such as dinners or regular card games or vacations with family and friends. This, as opposed to someone who has few connections to family or friends, never holds a job, constantly moves from place to place and has no connection to anyone or anything. These may seem to be unfair vague generalities as certainly, no one can predict with absolute certainty who will commit future crimes and who will not. However, the theory, supposedly backed by research studies, is asserted that people who lead stable lives with connections to family and friends tend to have dramatically lower re-offense rates.
So, if one is requesting reclassification to a lower level or to terminate early your obligation to be on the Registry at all, but not requesting a hearing, documents to be sent in might include:
- A letter or comprehensive evaluation from a forensic therapist who specializes in sexual issues that can include such things as reasons why, in their expert opinion, you do not present as high a risk of ever reoffending or present as high a danger to the community. The forensic therapist can also note the course of treatment you’ve been undergoing and how actively engaged in it you have been. Use of a forensic psychologist is very helpful for this process and is highly recommended.
- Any documentation that you have been living for quite some time a life of stability and responsibility.
- Letters from family, friends, teachers, employers, clergy, or community leaders noting the kind of good mainstream contributing life you’ve been living.
- Confirmation that you’ve been steadily employed or engaged in education.
- Perhaps you’ve been engaged in doing for others through community service, charitable groups, the church, volunteering on projects or just doing things for other on a personal level such as shoveling the snow of elderly neighbors for free without being asked.
- Evidence of any programs you’ve been engaged in such as drug or alcohol treatment programs, if appropriate.
- Records from prison, jail or probation of how well you did while either incarcerated or on probation.
What to Expect During a Sex Offender Board Hearing
If one is requesting a hearing, these documents should also be submitted. At the hearing, one can testify oneself, have a forensic therapist testify and also have family, friends, teachers, employers, clergy or community leaders or anyone you believe would be helpful to testify about your character and your life.
Remember, the hearing is not a retrial of the case and you are not there to treat it as an appeal and to argue the facts of the old charges to try to prove your innocence, You can exercise those rights in another forum of the courts through the appeal process. Here, the results of your trial or plea are assumed and the purpose of the SORB hearing is solely to determine what level of danger the hearing examiners at the Sex Offender Registry Board determine you to present.
The burden of proof is on the Board using the standard of clear and convincing evidence to prove their designated classification level. The sex offender does, however, retain an initial burden of production to come up with new information to introduce evidence of changed circumstances showing that he or she “does not pose a risk to re-offend or a danger to the public.”
If the petitioner opts for an actual hearing before the board, it is almost the same as an initial classification hearing. He or she has the right to an attorney. The hearings are not held in courtrooms. It is usually in a room sitting around a table. The hearings are private and members of the public are not allowed to attend. Sitting at the table are the petitioner and petitioner’s counsel. There is a hearing examiner or examiners. There is also an attorney from the Sex Offender Registry who essentially acts as opposing counsel. The SORB attorney generally introduces no witnesses and just submits the paperwork regarding the case as the evidence.
At the hearing, both attorneys may make opening statements. Then the petitioner can bring in witnesses one at a time. Witnesses might include the forensic therapist to give an expert opinion on the potential dangerousness or lack thereof of the petitioner; the friends and family of the petitioner; the petitioner his or her self; and whoever else one might think could give relevant insight such as teachers, employers, clergy or community leaders. The petitioner’s attorney will question these witnesses and the SORB attorney may or may not choose to cross-examine them. Then, both attorneys may give closing arguments.
The hearing examiner then usually does not announce a result right away. The hearing examiner will review all the evidence and testimony submitted and consider it along with a variety of other factors including how long the petitioner has been in the community; the seriousness of the original offense; the number of offenses committed; the offender’s behavior while either incarcerated or on probation; and whether there is a history of alcohol or drug abuse.
An experienced veteran attorney who knows the law and procedures before the Sex Offender Registry Board can help shepherd you through the process every step of the way from helping you determine who your witnesses are to gathering the proper documents to drafting a memorandum that presents all the arguments in your favor to selecting the expert forensic evaluator to do the questioning and arguing your case at the hearing which is similar in some ways to a trial.
Once you’re listed on the Sex Offender Registry in Massachusetts and you’ve been given a classification level this is not the final word permanently etched in stone. If you’ve been designated as a Level 3 (high risk) or a Level 2 (moderate risk), you can, in the future, apply to get reclassified one or two levels lower all the way down to Level 1 (low risk).
However, a period of time must go by. You can apply to be reclassified every three years, provided that, if you were, in fact, incarcerated for the offense, you must have been released and out in the community for at least 5 years.
In order to apply for a reclassification, you must make the request in writing. Then you have a choice – either request an actual hearing before the board or simply submit in writing the reasons why it would be more accurate to place you at a lower classification level and include whatever documentation you have to offer.
The petitioner is required to show “changed circumstances” since the last time they were before the board for determination of their classification level.
Are you interested in lowering your sex offender registry classification level? Contact expert criminal defense lawyer Peter Elikann today for a free legal consult.
It is possible to completely get off the Sex Offender Registry in Massachusetts after you’ve been on it for a number of years. Depending on the offense, some people are designated to be on the registry for life while others must be on it for 20 years. However, only if you’re scheduled to be on the registry for 20 years, can you apply for early termination at halftime after 10 years. That is 10 years after conviction, adjudication, release from custody, or supervision such as probation – whichever occurs last.
To qualify, you must not have committed another sex offense within those years since your conviction. The burden of proof is on the Sex Offender Registry Board to prove by clear and convincing proof the appropriateness of your remaining on the Registry. The sex offender does, however, retain an initial burden of production to introduce evidence of changed circumstances showing that he or she “does not pose a risk to reoffend or a danger to the public.” The offender needs to come up with “new information” of a decreased risk of reoffense or degree of dangerousness since the last time you were before the board for determination of your classification level or the last time you requested early termination if you ever did so.
In order to apply for an early termination, you must make the request in writing. Then you have a choice – either request an actual hearing before the board or simply submit in writing the reasons why it would be appropriate to terminate your obligation and include whatever documentation you have to offer.
Are you interested in terminating your obligation to register with the Sex Offender Registry? Contact expert criminal defense lawyer Peter Elikann today for a free legal consult.