When I was a sophomore in high school, I turned on my computer one day and realized I couldn’t access the Internet. An error message appeared that said the FCC had shut down Internet access for our household. When we called the number listed on the error message, we learned that one of the computers in our house had been sending out thousands of pornographic images, and some of them included child pornography. After an FCC official examined all the computers in our house, we learned that the source of these images was my 11-year-old sister’s desktop computer. She never used the desktop computer because it was slow and her laptop was faster. Some Russian hacked her computer and used it to distribute large amounts of pornography. So, my sister was technically in possession of child pornography.
In Flores-Figueroa v. United States, the United States Supreme Court examined a pivotal case involving mens rea. The petitioner, Ignacio Flores-Figueroa, was an illegal immigrant who worked in the United States. When his employer asked for his social security number, he made one up. It turned out that the social security number he wrote belonged to someone else, and he was charged with identity theft (he was also charged with illegal entry into the United States and misuse of immigration documents, to which he pleaded guilty). In 2006, a federal grand jury found him guilty of identity theft. Ignacio Flores-Figueroa’s lawyers argued in appeal that he was unaware that the social security number was someone else’s. The Eighth Circuit upheld his original sentence, arguing that knowledge of whether the number belonged to someone else or not was irrelevant. The Supreme Court overturned the Eighth Circuit’s decision. It held that the government has an obligation to prove that Mr. Flores-Figuerona intended to commit identity theft. Justice Bryer’s majority opinion emphasized that in criminal law, courts apply mens rea to every statute. Bryer wrote, “to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text.” The Court’s findings in this pivotal case are inconsistent with current laws about child pornography.
In Osborne v. Ohio, the United States Supreme Court explained that laws making possession of pornography a crime, regardless of the circumstances, were constitutional. It is terrifying to think that you might commit a crime without the intent to do so or even knowing that you committed a crime. Laws regarding child pornography have no clause about intent to receive or intent to distribute it. This has troubling consequences. People who didn’t intentionally acquire porn could be punished for having it. A teenager who receives a picture from his girlfriend without requesting it could be prosecuted. Someone who receives an email with child pornography in it would be in violation of the law. Someone who is trying to download a video on Limewire that has a fake label and turns out to be child porn could be prosecuted.
My sister wasn’t charged with possession of child porn, because prosecutors use discretion when deciding who to prosecute. But due process rights should not be contingent upon the discretion of a prosecutor. The Supreme Court decided long ago that the right of every citizen to due process overrides the risk that the guilty should go free.
Of course, it is sometimes difficult to prove intent to possess the pornography. The result of changing the law to require intent to possess child porn (or perhaps even applying a lower level of mens rea to child pornography, like negligent possession) puts the burden on prosecutors to prove beyond a reasonable doubt that people in possession of pornography intended to be in possession of it. The result is that some people who intentionally acquired child porn will walk free. Still, this is a price we must pay. We should not let prosecutors be the arbiters of who is committing egregious crimes and who is not worth prosecuting. Even though it may be difficult to prove mens rea, it should still be the essential element of any criminal act.