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Fondness for child erotica as a defense in CP case

Posted by Leucosticte on Sunday, June 28 2020 at 4:16:35PM

Usually you see prosecutors argue that if someone can be shown to have willingly possessed child erotica, it means that he probably intended to download any child porn that he was found in possession of, since it indicates his sexual interest in children. See, e.g., the Caldwell case, in the 6th circuit.

I know a guy who's facing CP charges now, who wants to turn this on its head, by arguing that the fact that he likes to download child erotica means that the CP found on his phone was probably downloaded by accident, when he was attempting to download child erotica, which looks pretty similar sometimes. E.g., if there are nudist girls, the only difference between child erotica and child porn may be in how they're posed, or where the camera is focused.

So he's thinking of taking the stand and telling the jury, "I love child erotica and download it 24/7, so it's totally plausible that I might have accidentally downloaded a few CP images, since I hang out with pedophiles all the time who are into that kind of stuff in addition to erotica, and might be sharing some images now and then that cross the line."

He's going to rely on the argument presented in the Jacobson case that "there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution".

So in other words, he's not going to dispute that maybe he'd like to download child porn if it were legal, but he tried to restrict himself to child erotica out of respect for the law, and a few CP images maybe slipped through that he didn't notice were CP till after he'd already downloaded them.

Also, in the Edwards case, in the 10th circuit, the court noted that "the fact that child pornography collectors also collect child erotica, participate in certain online forums relating to child erotica, and share other common characteristics does not support an inverse conclusion that possessors of child erotica and participants in such online forums are also collectors of child pornography."

Therefore he's going to tell the jury, "Just because the pedos I roll with like to trade CP doesn't mean that I would do that; I just hang out with them because they also have a lot of erotica to share, and so we can talk about how we'd love to have sex with kids if it were legal. It's established that I'm into erotica, and that I've said a lot of stuff in support of adult-child sex, so that supports my alibi that my downloading of CP happened by accident, because I was in the habit of hanging out with CP traders, for reasons other than wanting to trade CP with them."

What do you think of this strategy?

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