A Problem Paper on Police Searches and Child Pornography

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Short Paper #2 Dr. Green’s home was searched by the police after a judge issued a valid warrant because he was suspected of stealing new university material. While the police conducted their search they found 200 sexually explicit videos and movies both in VHS/DVD and on his computer. Fifty of these movies contain child pornography. Dr. Green was arrested on the possession of obscene material and child pornography. However he was never charged with possession of stolen items which suggests the items he was suspected of stealing were never found at Dr. Green home. The defense argues that Dr. Green is not guilty of the charges. The pornographic material found by the police is said to have contained child pornography. According to the Child pornography prevention act of 1996 (CCPA) child pornography can be defined as: any visual depiction, including any photograph, film, , video, picture, drawing or computer or computer-generated image or picture, which is produced by electronic, mechanical or other means, of sexually explicit conduct, where: (1) its production involved the use of a minor engaging in sexually explicit conduct, or; (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (3) such visual depiction has been created, adapted or modified to appear that an `identifiable minor’ is engaging in sexually explicit conduct; or (4) it is advertised, distributed, promoted or presented in such a manner as to convey the impression that it is a visual depiction of a minor engaging in sexually explicit conduct. (Akdeniz, 2001) In Osbone v. Ohio, the Ohio Supreme Court required that the defendant had to know that the images depicted children before being convicted of possession of child pornography. (Osborne v. Ohio, 1990, p. 103) If we closely look at the second point from the CCPA, it states “such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct”. ‘Appears to be” being the keyword, there is no evidence to suggest that Dr. Green had knowledge that the characters in the movies were minors. Furthermore, at first glance, by community standards, child pornography might be regarded as obscene material but to truly determine that, we apply the Three-Prong Miller Test. The Miller Test states that: “(1) Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest, (2) Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” (Miller v. California, 1973, p. 15) The material in question is considered obscene only if all three conditions are satisfied. Dr. Green teaches classes on human behavior at the university and it very plausible that Dr. Green uses this material for research with no evidence to suggest otherwise. After all, sex is a basic human need and has a great influence on human behavior. The materials found have scientific value and therefore cannot be considered obscene.

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