Torrent downloading cannot evade Virginia child porn laws

Even if someone has not been convicted of possessing child pornography before, multiple illegal sexual images of children found on the person's computer may bring enhanced charges. In the case of Papol v. Com., the defendant downloaded 12 images of girls appearing to be 12 or 13 years old through a "torrent" program which allowed him to gather images from multiple other sites on the internet. One of those sites was a website in the Ukraine known for trafficking in child porn.

Mr. Papol admitted to downloading the images, but objected to the enhanced charge of second or subsequent violations of the possession of child pornography law. He argued that since he had not been convicted of child pornography before, there was no predicate offense for the 11 charges under the law, and in any event, he obtained all 12 images during a single download.

Each image possessed is a separate violation

The "recidivism" provisions in other Virginia criminal laws usually use the word "conviction" as a requirement for the enhanced charge; the child pornography law specifically provides that a second or subsequent "violation" triggers the enhanced penalty. Since the defendant possessed the first image, the other 12 were second and subsequent possessions or violations.

The defendant then claimed he had not committed a second violation under the recidivism provision because he used a computer "torrent" program that retrieved images from multiple databases and compiled them into one file in a single download. But the law does not criminalize the act of acquiring or downloading child pornography, but the knowing possession of it.

One-click download efficient for peer-to-peer file sharing

An interpretation that would allow a second or subsequent conviction under the child porn statutes only if the person separately clicked "download" for each image would allow manipulation of the law's unit-of-prosecution application. The Appeals Court said the efficiency of the peer-to-peer network's one-click download of multiple images could not be used to evade the recidivism provision by people the law was meant to deter and punish.

The court stated that "It should not matter that the images were downloaded from the Internet during a single download episode any more than it should matter if they all arrived by mail in a single envelope." Therefore, when Mr. Papol downloaded 12 images of child porn to his computer, the first was the first image possessed, and the other 11 qualified as second or subsequent possessions under the recidivism provision of the law.

Prevention of child exploitation is of utmost importance

State and federal laws against child pornography reflect the governmental interest in the protection of its youth, and special treatment of violators has been justified thereby. Even adverse effects on constitutional rights from the operation of these statutes have been allowed because of the compelling interest in safeguarding the well being of minors.

Because of the harsh penalties possible with child porn violations and convictions, cases are prosecuted aggressively. The laws require proof of knowing possession, and it matters how many images are involved. It is essential for anyone facing charges involving child pornography to enlist the help of experienced attorneys who will utilize knowledge of the laws and court system in defending against this serious crime.