What do dead people have to do with Encouraging Child Sexual Abuse?
There are a few technical factors involved in determining whether 100 photos depicting child sexual abuse, all found in the defendant’s closet during the execution of a single search warrant, would result in 10o different convictions for Encouraging Child Sexual Abuse (ECSA) or merely 1 conviction, or something in between. But there’s really only one question that is difficult. Is the child depicted in the photo a victim, under Oregon law, of the person who obtains the picture years after it was taken? (No dispute, obviously, that the child is a victim of the person who produces the picture.) Or is the victim “society at large”?
The question was raised but not answered in State v. Betnar.
The issue raised by the parties’ arguments is how many victims were involved in defendant’s crimes. That is, it is not clear whether—when multiple charges are based on images of different children—ORS 163.684 contemplates that there was one victim or more than one victim, or whether the statute is intended instead to promote the general welfare of children, rather than to address a criminal act committed against a particular person. Because ORS 163.684 is subject to all of the above interpretations, it is not clear which subsection of ORS 161.067, if any, governs the merger issue in this case. No Oregon case has addressed that issue, and the answer is not obvious.
Another way to look at it is this: the possession of child porn creates a market for child porn. The greater the market, the more likely the child porn will be created to satisfy the demands of the market. Consequently, by participating in the market, one is “encouraging” the future abuse of a child to meet those demands. Under this analysis, which gains some support from the label the legislature has given the crime, the general welfare of children is the issue, and consequently society at large is the victim.
But that said, the visceral analysis of the average person (judge) is going to be that of course the child in the photo is a victim. The default position of just about anyone — legislative label notwithstanding — will be that the child is a victim. It is intellectually easy, and no one will ever be criticized in The Oregonian for saying so.
And case law is of little help. By definition, determining if there is a victim is going to be very crime-specific analysis, and case law that addresses arson (State v. Luers) or felony assault IV (State v. Glaspey) will have little application to the crime of ECSA.
But the right answer to this question can be reached by asking a different question. Can dead people be victims under Oregon law if they died before the crime was committed?
As far as I know, this has never been answered in Oregon, but it would seem the answer is no. A dead person is beyond any harm* that the criminal might inflict. There is, by definition, no way that a dead person can be injured by someone else. If injury is impossible, then so should victim-status.
And ECSA is a crime in which the “victim” will often have died years or decades before the crime is committed, before the criminal is even born. The child in the photograph never needs to testify at trial. And the nature of ECSA is such that a victim of the abuse will grow up, have a full life, die at a ripe old age, and still the images of the abuse will be circulating. Disgusting, sure, but it doesn’t make the decedent a victim every time the image is downloaded. Nor should we want it to. I don’t want to get into a broad complaint about our societal impulse to claim victimhood whenever we can, but it’s a very dark, very sad place for the child –now an adult — to imagine herself a victim whenever anyone anywhere looking at a picture that’s 20 years old. I’d rather hope that she sees herself as a survivor and not a victim in perpetuity.
Back to the question at hand. If a dead person cannot be a victim, that means one of two things for ECSA. Either the child is not a victim, society at large is a victim, and all of those photos in the closet will likely merge into a single conviction. Or the child is a victim, but only if he is still alive, which creates an insanely huge evidentiary problem for the state. (Yes, sometimes they know who the children are, because the same pictures circulate endlessly, but most of the time probably not.) If the state can’t prove any of the children are still alive, then again, a single conviction for child sexual abuse.
I used the example of a closet to avoid a different issue that often comes up when images are on the same hard drive, having been obtained on different dates: is it one criminal episode, based on the timing of the search, or is it a different criminal episode every time the images were down loaded. A brief example of that tension can be found here.
* For a more lovely way of expressing that same sentiment, note these passages from William Shakespeare’s Cymbeline.
Feare no more the heat o’ th’ Sun,
Nor the furious Winters rages,
Thou thy worldly task hast done,
Home art gone, obtain thy wages.
Golden Lads, and Girls all must,
As Chimney-Sweepers come to dust.
Feare no more the frowne o’ th’ Great,
Thou art past the Tirant’s stroake,
Care no more to cloath and eate,
To thee the Reede is as the Oake:
The Scepter, Learning, Physicke must,
All follow this and come to dust.
Feare no more the Lightning flash.
Nor th’ all-dreaded Thunderstone.
Feare not Slander, Censure rash.
Thou hast finish’d Joy and mone.
All Lovers young all Lovers must,
Consigne to thee and come to dust.
No Exorcisor harme thee,
Nor no witch-craft charme thee.
Ghost unlaid forbeare thee.
Nothing ill come neere thee.
Quiet consumation have,
And renowned be thy grave.