Protecting Child Victims' Rights as Vigorously as Criminal Defendants' When Prosecuting Possession or Distribution of Child Pornography

• Publication year: 2021

PROTECTING CHILD VICTIMS' RIGHTS AS VIGOROUSLY AS CRIMINAL DEFENDANTS' WHEN PROSECUTING POSSESSION OR DISTRIBUTION OF CHILD PORNOGRAPHY

Kiel Willmore

Abstract: Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state's evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims' privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 ("H.B. 2177"), which amends the legislative findings on the child pornography epidemic, and places certain limits on the discovery of child pornography evidence. These limitations are found in the new statute RCW 9.68A.170. Washington's law is modeled closely on the Adam Walsh Child Protection and Safety Act of 2006, which has withstood numerous federal constitutional challenges. This Comment argues that the Washington State Supreme Court should uphold RCW 9.68A.170 as constitutional, and overrule its earlier decisions in State v. Boyd and State v. Grenning, which created a per se rule requiring the State to provide child pornography evidence to criminal defendants.

INTRODUCTION

Weldon Marc Gilbert enticed adolescent boys with exotic trips, rides in airplanes and boats, then allegedly lured them into his home where he filmed himself sexually abusing them.(fn1) His case is pending before the Pierce County Superior Court.(fn2) From his jail cell, Gilbert petitioned the court to receive both copies of his videos and a means to view them. Washington's criminal discovery rules(fn3)-as construed by the Washington State Supreme Court in State v. Boyd(fn4) and State v. Grenning(fn5)-entitle Gilbert to receive and view a copy of the child pornography evidence without any showing that his viewing the materials is necessary to his defense.(fn6)

Similar to Washington State law, a defendant charged in federal court with possession of child pornography before 2006 would routinely receive a copy of the pornographic evidence to review in preparation for trial.(fn7) The government's surrender of child pornography evidence results in several problematic consequences. Most troubling, every viewing of the pornography constitutes further victimization of the children depicted in the obscene images, regardless of whether the viewing occurs in preparation for trial. There is also a custody and security risk: once the government distributes the pornography to the defense and other expert witnesses, there is no guarantee that the materials will not be further disseminated. Even if unlikely, defense counsel and expert witnesses who receive the pornography risk future prosecution if they fail to return the evidence to the court. Another dilemma-albeit commonly seen as incurable-is that those prosecuting child pornography cases violate federal law themselves whenever they copy and distribute the pornographic evidence.

The United States Congress addressed some of these troubling concerns by passing the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act" or "Act").(fn8) Congress made lengthy and important findings regarding the unquestionable vice of child pornography, and recognized the need to stamp out its duplication and distribution.(fn9) Specifically, Congress determined that viewing child pornography constitutes a renewed violation of the child victims' privacy and a repetition of their abuse.(fn10) In response to these findings, Congress created a special exception to the discovery rules in cases involving child pornography. In most circumstances, the Act prohibits the government from reproducing the evidence and mandates securing the evidence in a government facility. However, the Act requires the government to make the materials "reasonably available" for examination by the defense, or else produce a copy of the pornographic evidence upon a showing that receiving a copy is essential to the defense.(fn11)

Until 2012, Washington State law reflected the pre-2006 federal rules regarding the discovery of child pornography evidence.(fn12) In Boyd and Grenning, the Washington State Supreme Court held that under the Washington State Superior Court Criminal Rules (CrR), the State had a duty to provide the defense with copies of the child pornography evidence that it intended to use at trial.(fn13) The Court reasoned that denying the defendant this evidence not only violated court rules, but also implicated the defendant's right to due process.(fn14)

The Washington State Legislature responded to the Boyd and Grenning decisions by enacting Substitute House Bill 2177 ("H.B. 2177"), which took effect in July 2012.(fn15) The Act's legislative findings express a clear purpose of protecting child victims from repeated abuse and victimization through unnecessary dissemination of the pornography.(fn16) Patterned after the Walsh Act, H.B. 2177-codified in part at RCW 9.68A.170-requires child pornography evidence to remain in the possession and control of the court or relevant law enforcement agency, and made "reasonably" available for either party's examination.(fn17) Where copies are necessary to a party's case, the statute shifts the burden to the requesting party to make a "substantial showing" to the court before dissemination may be authorized.(fn18) Without a substantial showing of need, the court is otherwise prohibited from ordering the reproduction and distribution of such evidence.(fn19)

This Comment argues that the Washington State Supreme Court should overrule its decisions in Boyd and Grenning in light of Washington's new discovery statute, a constitutionally valid means of balancing the interests of child victims and criminal defendants. Part I provides an overview of the Walsh Act, and federal court decisions upholding the Walsh Act as constitutional. Part II describes how the Washington State Supreme Court previously addressed a defendant's right to this child pornography evidence in Boyd and Grenning. Part III details the Washington State Legislature's response to Boyd and Grenning: H.B. 2177. Part IV argues that H.B. 2177's discovery limitations under RCW 9.68A.170 comply with the constitutional requirements of due process and right to counsel, further state legislative goals of protecting children and combating child pornography, and are consistent with other provisions of the Washington State Constitution.

I. FEDERAL COURTS HAVE UPHELD THE WALSH ACT'S LIMITATIONS ON A CRIMINAL DEFENDANT'S DISCOVERY RIGHTS

When determining whether RCW 9.68A.170 comports with a defendant's rights of due process and effective assistance of counsel, the Washington State Supreme Court should look to the statute's roots in the Walsh Act, and the various federal courts opinions upholding the Act. Generally, a criminal defendant in federal court may examine physical evidence in the government's possession in preparation for trial. Before 2006 this included child pornography evidence. In 2006 Congress enacted the Walsh Act, which excluded child pornography from this general discovery rule. Challenges asserting that the Walsh Act facially violates a defendant's due process rights-coupled with arguments regarding a defendant's Sixth Amendment right to effective assistance of counsel-have unanimously failed.(fn20) Numerous federal courts have upheld the constitutionality of the Walsh Act's discovery restrictions, limitations that are nearly identical to those under RCW 9.68A.170.

A. Congress Enacted the Adam Walsh Child Protection and Safety Act of 2006, Closing the Loophole That Permitted Dissemination of Child Pornography Evidence During Discovery

In federal court, Federal Rules of Criminal Procedure Rule 16 governs the parties' discovery and inspection of evidence in criminal proceedings.(fn21) The rule permits the defendant to copy or photograph evidence in the government's possession if the item is material to preparing the defense, the government intends to use the item at trial, or the item was obtained from or belongs to the defendant.(fn22) These items may include books, papers, documents, data, and other tangible objects.(fn23) In cases involving child pornography(fn24) charges, courts have held that a hard drive containing pornographic media qualifies as data, photographs, or tangible objects subject to this discovery rule.(fn25) Rule 16 required the government to produce mirror-image copies of such hard drives to defendants who requested them in preparation for trial.(fn26) This duplication and dissemination contravenes federal law that prohibits any person from knowingly possessing, reproducing, and distributing child pornography.(fn27)

To prevent such discovery, Congress passed the Walsh Act in 2006.(fn28) The act amended 18 U.S.C. § 3509 ("§ 3509")-the applicable statutory provisions on discovery-to include subsection (m), which requires the court or the government to retain control of materials that constitute child pornography in criminal proceedings.(fn29) In passing the Act, Congress made the following findings:(A)The vast majority of child pornography prosecutions today involve images contained on...