5-4-2010:
From Sex Hysteria Blog:
Carlos Alfredo Simon-Timmerman was arrested for possession of child pornography. The only problem was that it wasn’t child pornography and any cop or prosecutor with a double-digit IQ should have known that. Unfortunately, anti-sex crusaders have never been known for their intellectual prowess.
The child porn that Simon-Timmerman had in his possession was a video called “Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face.” The movie stared noted film actress Lupe Fuentes.
Despite the fact that it would have been a simple matter to verify the age of the porn star, Assistant U.S. Attorney Jenifer Yois Hernandez-Vega proceeded to prosecute Simon-Timmerman based solely on the fact that the star looks under age. Yep, that’s correct. Prosecutor Hernandez-Vega apparently thinks that a guess based on nothing more than appearance trumps the actual fact of her age.
Reading through the story, it’s patently clear that the prosecutor was not the slightest bit interested in justice or the innocence of her target. She was totally vested in a conviction despite any facts and enthusiastically embarked on a crusade to destroy the life of Carlos Alfredo Simon-Timmerman using her powers as an agent of the government.
For the remainder of this interesting post:
May 4, 2010
U.S. Prosecutor crusades to falsely crucify a man for child porn
January 26, 2010
Pervert in court over cartoon porn
1-26-2010 Australia:
AN IPSWICH man has admitted downloading graphic cartoon porn images featuring child characters from The Simpsons and The Powerpuff Girls TV shows.
The 28-year-old is now a registered sex offender and will have to report to police after pleading guilty in Ipswich District Court to having the bizarre images on his computer.
Police went to Kurt James Milner’s Leichhardt home on January 24, 2008 after receiving an anonymous tip-off about the disturbing material.
Milner told police he would co-operate but did not want to give them his computer.
But an hour-and-a-half later he phoned police and said they could now have his computer.
Officers discovered the computer would no longer turn on but a year later police forensic experts recovered 64 images of cartoon child exploitation material in the machine’s recycle bin.
The images depicted figures from The Simpsons, The Powerpuff Girls and The Incredibles in sexually explicit positions.
Milner, a former security guard, told police he downloaded the images to show them to his friend “because he believed they were funny”.
He pleaded guilty to charges of possessing child exploitation material and using a carriage service to access child exploitation material.
Milner was sentenced to 12 months jail but it was wholly suspended for five years. A conviction was recorded.
He was also given a $1000 good behaviour bond for five years.
Crown Prosecutor Suzanne Cantatore said the sentence needed to be harsh as it was Milner’s second conviction for having child exploitation material.
The Leichhardt resident was convicted of possessing child exploitation material in 2003 after 59 sexual images of actual youngsters were found on his computer. He received two years probation with no conviction recorded.
“Although these offences involve cartoon characters it is nonetheless serious especially since he has a prior conviction for child exploitation material,” Ms Cantatore said.
Defence lawyer Matthew Fairclough said his client did not get any sexual gratification from the cartoons.
“It was more about amusement,” Mr Fairclough said.
Mr Fairclough said his client complied with his previous probation order but was never offered any counselling.
Judge Deborah Richards said the offences were particularly serious as Milner had history for the same crime. ..Source.. Felicity Caldwell
June 14, 2009
FL- Jury calls renderings child porn
6-14-2009 Florida:
BARTOW - Although a jury convicted a former Polk County school principal on child pornography charges Friday, appeals courts likely will have the last word on whether his actions were a crime.
Prosecutors say John Stelmack superimposed the faces of two girls on photos of nude women to make it appear as if the girls were in lewd poses.
Stelmack, 62, remained quiet and showed no visible reaction as the verdict was read. He faces up to 25 years in prison.
Courts have ruled that most pornography is protected by the First Amendment. Child pornography is not, however, because the government has a strong interest in protecting children from exploitation.
But what about pornography that appears to depict children but was produced without involving children in lewd or sexual activity?
"There are definite potential constitutional problems," said Becky Steele, an American Civil Liberties Union attorney. "You can't constitutionally premise legislation on the desirability of controlling a person's private thoughts."
In Stelmack's case, she said, "No children were actually involved in sexually harmful conduct."
The U.S. Supreme Court in 2002 overturned a federal law that made computer-simulated child pornography illegal. The high court ruled that because the computer-generated depictions were not the product of the actual sexual abuse of children, they were protected by the First Amendment.
Stelmack's attorney, Robert Gray, maintains the photos at the center of his client's case are not child pornography.
After the verdict, Gray asked that Stelmack be allowed to remain free pending his appeal, but the judge ordered him held without bail.
Circuit Judge Mark Carpanini refused to dismiss charges against Stelmack before trial. Although Carpanini didn't issue a written opinion, his rationale was similar to that rendered by another judge in a similar Polk case.
Danny Lynn Parker, a volunteer Sunday school teacher, was charged with producing child pornography after authorities said he took photographs of children and superimposed their faces over adult images.
In Parker's case, which is set for trial in July, Judge Donald Jacobsen ruled the prosecution could proceed because the faces were of "identifiable real children in pornographic photographs" of "what appear to be children engaged in sexual conduct."
Jacobsen's decision did not mention the 2002 high court case, Ashcroft v. Free Speech Coalition.
In Stelmack's case, the girls whose faces were used were 11 and 12 at the time, a Polk school investigator testified.
The investigator, Chuck Smith, said he found four photos in which shots of the girls' faces were superimposed on photos of at least one nude woman. The photos were found in a briefcase in Stelmack's office closet at Scott Lake Elementary in Lakeland.
Charles Rose, a Stetson University College of Law professor, said Florida lawmakers constructed the state's child pornography statute "to get around the Ashcroft case problem. Whether the Florida law will hold up on appeal I don't know."
Rose said he thinks Stelmack's case will hinge on just how explicit the photographs were and whether the courts deem them to involve sexual conduct, rather than mere nudity.
"There has got to be a sexual conduct component to it," Rose said. ..Source.. by ELAINE SILVESTRINI
August 6, 2008
PA- Man admits morphing photos into child sex abuse image
8-6-2008 Pennsylvania:
In an unusual federal obscenity case, a Monroeville man admitted today that he used software for photographs to create computer images of a 14-year-old girl being sexually abused, although no actual abuse took place.
Henry Kendall pleaded guilty in federal court to one count of possession of obscene visual representation of the sexual abuse of children.
Federal prosecutors agreed to drop a second charge of possession of child pornography.
A girl known by Mr. Kendall was depicted on Mr. Kendall's computer in bondage and being sexually abused. Someone saw the images and reported them to authorities.
When they raided the home, U.S. postal inspectors and FBI agents said the man admitted to them that he used Photoshop software to create the bondage scenes and superimpose images of his penis into the pictures.
In court today, Assistant U.S. Attorney Stephen Kaufman told the judge that the images are "clearly obscene."
Under federal law, possession of any depictions of the sexual abuse of children, even fake ones, is illegal. ..News Source.. by Torsten Ove, Pittsburgh Post-Gazette
Man gets 2 years in prison for creating child porn images
8-1-2008 Pennsylvania:
Henry Kendall didn't victimize the girl physically.
Though he had photographs of the 14-year-old in bondage, with male genitalia featured, Mr. Kendall never touched her.
Instead, he took pictures of her from a computer and used software to morph regular photos into child pornography.
Yesterday, he was sentenced to two years in prison for violating federal obscenity law, which prohibits possessing visual images of the sexual abuse of children.
He faced a recommended guideline range of 37 to 46 months in prison.
Mr. Kendall's defense attorney, Patrick Thomassey, argued that any kind of prison term didn't make sense.
"I represent real criminals in real cases," he said. "And this is not a real criminal.
"This is something he did at home, on his own computer, never intending to share with anyone. It's equivalent to drawing something."
Mr. Kendall, 46, of Monroeville was caught when the girl's brother saw the images on the computer. He downloaded them to his iPod and went to the police.
When investigators served a search warrant on Mr. Kendall's home, they found four such images, along with one video involving child pornography.
Mr. Thomassey said he didn't believe his client posed a danger to society. But U.S. District Judge David S. Cercone took issue with that.
"There are signs that he is potentially a danger to the community," the judge said.
Assistant U.S. Attorney Stephen R. Kaufman said that Mr. Kendall showed a strong sexual interest in the girl.
"The harm goes beyond how the child victim feels," he said. "This situation has really ripped apart this family."
In addition to his prison time, Mr. Kendall also will be required to serve seven years supervised release and register as a sex offender. ..News Source.. by Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.
March 20, 2008
FBI posts fake hyperlinks to snare child porn suspects
3-20-2008 National:
The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.
A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police.
Roderick Vosburgh, a doctoral student at Temple University who also taught history at La Salle University, was raided at home in February 2007 after he allegedly clicked on the FBI's hyperlink. Federal agents knocked on the door around 7 a.m., falsely claiming they wanted to talk to Vosburgh about his car. Once he opened the door, they threw him to the ground outside his house and handcuffed him.
Vosburgh was charged with violating federal law, which criminalizes "attempts" to download child pornography with up to 10 years in prison. Last November, a jury found Vosburgh guilty on that count, and a sentencing hearing is scheduled for April 22, at which point Vosburgh could face three to four years in prison.
The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors. And so on.
"The evidence was insufficient for a reasonable jury to find that Mr. Vosburgh specifically intended to download child pornography, a necessary element of any 'attempt' offense," Vosburgh's attorney, Anna Durbin of Ardmore, Penn., wrote in a court filing that is attempting to overturn the jury verdict before her client is sentenced.
In a telephone conversation on Wednesday, Durbin added: "I thought it was scary that they could do this. This whole idea that the FBI can put a honeypot out there to attract people is kind of sad. It seems to me that they've brought a lot of cases without having to stoop to this."
Durbin did not want to be interviewed more extensively about the case because it is still pending; she's waiting for U.S. District Judge Timothy Savage to rule on her motion. Unless he agrees with her and overturns the jury verdict, Vosburgh--who has no prior criminal record--will be required to register as a sex offender for 15 years and will be effectively barred from continuing his work as a college instructor after his prison sentence ends.
How the hyperlink sting operation worked
The government's hyperlink sting operation worked like this: FBI Special Agent Wade Luders disseminated links to the supposedly illicit porn on an online discussion forum called Ranchi, which Luders believed was frequented by people who traded underage images. One server allegedly associated with the Ranchi forum was rangate.da.ru, which is now offline with a message attributing the closure to "non-ethical" activity.
In October 2006, Luders posted a number of links purporting to point to videos of child pornography, and then followed up with a second, supposedly correct link 40 minutes later. All the links pointed to, according to a bureau affidavit, a "covert FBI computer in San Jose, California, and the file located therein was encrypted and non-pornographic." 
Some of the links, including the supposedly correct one, included the hostname upload.sytes.net. Sytes.net is hosted by no-ip.com, which provides dynamic domain name service to customers for $15 a year.
When anyone visited the upload.sytes.net site, the FBI recorded the Internet Protocol address of the remote computer. There's no evidence the referring site was recorded as well, meaning the FBI couldn't tell if the visitor found the links through Ranchi or another source such as an e-mail message.
With the logs revealing those allegedly incriminating IP addresses in hand, the FBI sent administrative subpoenas to the relevant Internet service provider to learn the identity of the person whose name was on the account--and then obtained search warrants for dawn raids. 
The search warrants authorized FBI agents to seize and remove any "computer-related" equipment, utility bills, telephone bills, any "addressed correspondence" sent through the U.S. mail, video gear, camera equipment, checkbooks, bank statements, and credit card statements.
While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant.
The defendant in that case, Travis Carter, suggested that any of the neighbors could be using his wireless network. (The public defender's office even sent out an investigator who confirmed that dozens of homes were within Wi-Fi range.)
But the magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched." Translated, that means the search warrant was valid.
Entrapment: Not a defense
So far, at least, attorneys defending the hyperlink-sting cases do not appear to have raised unlawful entrapment as a defense.
"Claims of entrapment have been made in similar cases, but usually do not get very far," said Stephen Saltzburg, a professor at George Washington University's law school. "The individuals who chose to log into the FBI sites appear to have had no pressure put upon them by the government...It is doubtful that the individuals could claim the government made them do something they weren't predisposed to doing or that the government overreached."
The outcome may be different, Saltzburg said, if the FBI had tried to encourage people to click on the link by including misleading statements suggesting the videos were legal or approved.
In the case of Vosburgh, the college instructor who lived in Media, Penn., his attorney has been left to argue that "no reasonable jury could have found beyond a reasonable doubt that Mr. Vosburgh himself attempted to download child pornography."
Vosburgh faced four charges: clicking on an illegal hyperlink; knowingly destroying a hard drive and a thumb drive by physically damaging them when the FBI agents were outside his home; obstructing an FBI investigation by destroying the devices; and possessing a hard drive with two grainy thumbnail images of naked female minors (the youths weren't having sex, but their genitalia were visible).
The judge threw out the third count and the jury found him not guilty of the second. But Vosburgh was convicted of the first and last counts, which included clicking on the FBI's illicit hyperlink.
In a legal brief filed on March 6, his attorney argued that the two thumbnails were in a hidden "thumbs.db" file automatically created by the Windows operating system. The brief said that there was no evidence that Vosburgh ever viewed the full-size images--which were not found on his hard drive--and the thumbnails could have been created by receiving an e-mail message, copying files, or innocently visiting a Web page.
From the FBI's perspective, clicking on the illicit hyperlink and having a thumbs.db file with illicit images are both serious crimes. Federal prosecutors wrote: "The jury found that defendant knew exactly what he was trying to obtain when he downloaded the hyperlinks on Agent Luder's Ranchi post. At trial, defendant suggested unrealistic, unlikely explanations as to how his computer was linked to the post. The jury saw through the smokes (sic) and mirrors, as should the court."
And, as for the two thumbnail images, prosecutors argued (note that under federal child pornography law, the definition of "sexually explicit conduct" does not require that sex acts take place):
The first image depicted a pre-pubescent girl, fully naked, standing on one leg while the other leg was fully extended leaning on a desk, exposing her genitalia... The other image depicted four pre-pubescent fully naked girls sitting on a couch, with their legs spread apart, exposing their genitalia. Viewing this image, the jury could reasonably conclude that the four girls were posed in unnatural positions and the focal point of this picture was on their genitalia.... And, based on all this evidence, the jury found that the images were of minors engaged in sexually explicit conduct, and certainly did not require a crystal clear resolution that defendant now claims was necessary, yet lacking.
Prosecutors also highlighted the fact that Vosburgh visited the "loli-chan" site, which has in the past featured a teenage Webcam girl holding up provocative signs (but without any nudity).
Civil libertarians warn that anyone who clicks on a hyperlink advertising something illegal--perhaps found while Web browsing or received through e-mail--could face the same fate.
When asked what would stop the FBI from expanding its hyperlink sting operation, Harvey Silverglate, a longtime criminal defense lawyer in Cambridge, Mass. and author of a forthcoming book on the Justice Department, replied: "Because the courts have been so narrow in their definition of 'entrapment,' and so expansive in their definition of 'probable cause,' there is nothing to stop the Feds from acting as you posit." ..more.. by CNET.news
March 11, 2008
NH- Court deals a blow to sex-predator bill
People can’t be charged with child porn if images are digitally created, court rules
3-11-2008 New Hampshire:
CONCORD – A state Supreme Court decision forces Attorney General Kelly Ayotte and Gov. John Lynch to scale back a proposed crackdown on predators who use the Internet to prey on children, Ayotte said Monday.
The state cannot charge someone with child pornography if the images used were digitally created and did not represent an "actual child," according to the ruling.
Ayotte told the Senate Judiciary Committee the bill (SB 495) is still badly needed to increase penalties for those who peddle child pornography and close a loophole to make it a crime to expose oneself to a child with the use of a webcam."None of these are mandatory penalties, judges are still left with discretion," Ayotte stressed.
Gov. John Lynch called for this legislation by creating a task force Ayotte led that worked for nearly 18 months.
"We will not allow sexual predators to hide in the shadows of cyberspace. We must modernize our laws to protect our children from the threats of the 21st Century," Lynch said.
"It is clear these laws are outdated and insufficient in many respects."
This proposal splits the child pornography law into three separate offenses of possession, distribution and manufacture.
Each separate offense would carry enhanced penalties for repeat offenders.
Someone convicted of possessing child pornography can now face up to seven years upon a first offense; this proposal would increase that to as long as 15 years in prison.
Under current law, someone convicted for making child pornography a second time can face up to 15 years in state prison under current law. This plan would have the same person facing up to a life sentence in state prison.
The proposal requires convicted sex offenders to register their e-mail and online identity.
But Michael Iacopino, who heads up the New Hampshire Association of Criminal Defense Lawyers, said the measure violates First Amendment rights of defendants and seeks to deny them due process.
"It is unconstitutional and unnecessarily creates an unfair balance in the criminal justice trial process," Iacopino wrote in a legal brief for the Senate panel.
"The bill needs significant revision in order to survive constitutional scrutiny and to ensure that due process is provided to citizens accused of these offenses."
Iacopino said it can cost defendants up to $100,000 to defend themselves against a child pornography allegation.
Meanwhile, a lawyer from the Motion Picture Association of America said without changes, this could lead to prosecution for depiction of child sex scenes such as in "The Kite Runner" and "Juno."
Jeanne Herrick said movie studios typically use adult body doubles in these sex scenes and urged the Senate to remove the word "simulated" from the proposed, child pornography law.
"We believe that the statute as drafted captures more than necessary," Herrick warned.
Ayotte said she thought the lobby's fears were unwarranted and said she saw no need for the change.
Hudson Police Chief Richard Gendron said he thought prosecutions would drop once a Southern Hillsborough County law enforcement task force formed and started cracking down on cases in late 2006.
"We don't see this every changing," Gendron said. "We see it getting worse because there are more and more people online trying to solicit sex with children."
Merrimack County Attorney Daniel St. Hillaire and Enfield Police Chief Richard Cray also pressed support for the bill.
"With the creation of the Internet, a whole new predator has emerged," said Cray who heads the Association of New Hampshire Police Chiefs.
"Their intentions are clear. They come to harm our children." ..more.. by Kevin Landrigan
November 23, 2007
Does fake child porn do real children harm?
11-15-2007 Canada:
Suppose the following scenario:
Willy the webcam client: i’m so hard for u, bb, i wanna lose my virginity again, like when i was 16yo…
Crystal-Eyes the webcam girl: oh yeah, bb – how do you want it to go down?
Willy: tell me your name is suzy and you’re 14yo and you want me to pop your cherry
Crystal-Eyes: that sounds really hot but … although you don’t reasonably think I’m a minor and although this interaction is only through the internet, bb…according to subsection (a)(i) of section 163.1 of the Canadian Criminal Code, depicting myself as being under the age of 18 and engaging in, or depicting myself as engaging in, explicit sexual activity constitutes child pornography and I could be arrested… bb.
Willy: fuck - i just lost my boner
Ouch! While Willy’s boner goes down and Crystal-Eyes is legislated out of making an honest living, politicians can feel good about themselves for passing some of the strictest child porn laws in the world.
Since the 2002 passage of Bill C-15A, definitions of child porn have broadened. Naturally, it is an offense to depict actual minors in sexually explicit acts, but it is also an offense to show adults pretending to be minors engaging in sexually explicit activity. Now, visual representations of child porn include “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means.” These visual representations include depictions of real children, as well as computer images, sculptures, paintings, and drawings. This means a computer-generated image of a digital “child” engaged in sexually explicit activity constitutes child porn.
Additionally, a written story, play, or any textual representation can be considered child porn if it “counsels” or “advocates” sex with a minor. The act of possessing and accessing child porn is also an indictable offense. The bill does allow for defenses of “artistic merit,” and material that serves an “educational, scientific or medical purpose.”
But should Willy and Crystal-Eyes be denied their fantasy role-playing? The prevailing thought behind such sweeping definitions of child porn is that, even if actual children are not involved in the production, real children are harmed nonetheless. We assume this is true – but, surprisingly, there is little concrete evidence to support this.
In passing this law, Parliament was not required to establish objective scientific evidence that the possession of child porn causes harm to actual children, even if it does not depict actual minors. This thinking is fourfold. Possessing child porn is harmful because: 1) child pornography promotes cognitive distortions by normalizing child abuse in the minds of pedophiles; 2) it fuels fantasies that incite offenders to offend; 3) it is used for grooming and seducing victims; and 4) children are abused in the production of child pornography involving real children.
Child pornography that involves flesh-and-blood children is obviously wrong and causes harm in its production, dissemination, and consumption. But does it necessarily follow that fake, computer-generated images are also harmful, especially if only created for personal use? Does viewing fake child porn necessarily lead to pedophiliac acts?
Scientific fact is limited. According to a 2003 cbc.ca article, “Various studies have shown that between 35 - 50% of child porn collectors have a history of abusing children.” I assume that these studies are available, but I could not locate them. All I could find were contradictory reports from child-advocacy organizations. So I turned to Canadian court judgments to inform my assessment.
In the 1999 ruling on R. v. Sharpe, BC Supreme Court judge Shaw J.’s review of literature linking possession to harm found little scientific evidence to support such claims. When R. v. Sharpe was appealed before the Supreme Court of Canada in 2001, the issue of how much much proof is required to demonstrate harm was raised again. Is “scientific proof based on concrete evidence” necessary? Or is “a reasoned apprehension of harm” all that is required? In the end, the 2001 ruling agreed with Parliament’s reasoned apprehension. But the discussion in itself points to the difficult of finding reliable evidence to justify a limit on simulated child pornography.
This is hard for most people to accept. In the Toronto case of Michael Briere, who pled guilty to the 2003 first-degree murder of Holly Jones, the crown held that Briere was encouraged to act after viewing child pornography. The defendant agreed. Numerous child protection agencies support claims that the increase in internet child porn online has resulted in increases in child abuse.
However, where no conclusive evidence can be found, how can we criminalize fantasy and the creative expression of this fantasy, especially when it does not involve actual children and is intended for private use? The Charter of Rights and Freedoms clearly sets out protection for freedom of expression. This freedom includes popular thought, but also includes unpopular – even abhorrent and despicable – thought.
We can advocate for child safety online, but we should not make legislation until we can accurately gauge the harm done to society. I do not know whether viewing simulated child porn leads to abusing children. But I do know that we should not criminalize a person based on unclear and contradictory evidence. ..more.. by Brianna Hersey
