Viewing and distributing child pornography is a crime. But what if it’s intended to defend a person at trial?
A new Washington law imposed June 7 forbids prosecutors and police officers from making copies of videos and images of children engaged in sexually explicit conduct. The copies were formerly given to attorneys to assist in their clients’ defense, per court rules that prosecutors give up any evidence they intend to use at trial.
The new law mandates that defense attorneys or the defendants view the porn at a neutral facility or law enforcement office.
“The defendant still has his rights, but the victim still has protection,” Clark County Senior Deputy Prosecutor Alan Harvey said in explaining the purpose of the legislation.
The law is already having local ripple effects. Prosecutors say the first defendant affected by the new law is Michael Scott Norris, a Vancouver man and former Bible camp counselor charged with sexually abusing a young brother and sister from 2003 to 2006. Norris’ case in Clark County is pending. Norris’ defense attorney says the new law slows the evidence-gathering process.
The child rape case stalled for years in a dispute over whether his attorney should have access to thousands of images of the two children, including nine sexually explicit videos. Clark County prosecutors wouldn’t hand over the copies for fear they were violating a federal law prohibiting the dissemination of child pornography.
The Washington Court of Appeals in 2010, however, decided that prosecutors must hand over the pornography so Norris’ attorney could prepare a defense. Norris’ attorney, Clayton Spencer, received the pornographic images in February 2011.
But last week, after the law went into effect, Spencer was ordered to return the images to a judge.
In a separate court case, Norris, 45, has been sentenced in federal court to 25 years in prison for child pornography. However, he still must resolve his child rape charges in Clark County Superior Court. He has a review hearing June 18.
Proponents say the bill, signed by Gov. Chris Gregoire in March, is intended to protect children from re-victimization.
“Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of the abuse,” according to House Bill 2177.
Harvey, who is handling the Norris case, said the new law has the same basis as the federal law, the Adam Walsh Child Protection Act, which has been in place since 2006.
“It allows and provides for the protection of victims of depictions of sexually explicit conduct, that they have the same protection as under the federal system,” Harvey said.
Defense attorney Spencer, however, said the new law greatly slows the process of trial preparation. Relying on the schedule of a facility or a law enforcement officer before inspecting the images can turn weeks of preparation into months, he said.
The playing field is slanted because the prosecution has quicker access to the evidence, he said. “It enables the prosecution to hold the evidence at a remote distance,” Spencer said. “It’s not equal access being portrayed here.”
The issue of a defendant’s access to child pornography has cropped up in other parts of the state. Last year, a Pierce County man made national headlines when he was allowed to view child sex videos as he prepared for trial in his jail cell. The man, Weldon Marc Gilbert, was representing himself.
The law now states that a defendant representing himself must be supervised when he inspects the videos at a facility.
It is not yet clear how the new law will impact the outcome of Norris’ case, if at all. Norris filed a statement that he agreed with the local prosecutors’ version of the allegations. But last month, he filed a motion to withdraw his statement and requested a new judge hear his case.
