David Benowitz on Sex Offenders and Online Communications

Question: If you have to register as a sex offender, how can that affect your future life?

Answer: It can make it impossible to get a job. You may be restricted on where you can live. You’re going to be restricted from voting for at least several years. You lose the ability to get some federal benefits. It’s a nightmare.

Question: Given some of those implications, is there anything that you tell your clients when they come to you with one of these cases?

Answer: People need to be very careful about who they communicate with online.

If you’re online and someone starts suggesting that you trade images of anything, that’s not something that anyone should be involved in. That’s a very important thing to stay away from.

When you get into the issues where someone is on a file-sharing site or a chat room, I think it’s important to understand that you shouldn’t be downloading anything if you don’t know what it is. Don’t download a file that has undetermined content, so you don’t make a tragic mistake. Sites where there might be questionable content … you probably don’t want to be on that site. You need to understand that that’s not something to be involved in.

I think the important thing to understand is there are things that can be done when you’re representing someone charged with these types of offenses. Let’s assume that child pornography is found on someone’s home computer. First of all, one issue is who put it there? How did it get there? Because you just don’t know sometimes.

There’s the issue of: are these images, in fact, child pornography, within the definition of the statute? Because there are certain images that do not constitute child pornography. You need to have someone who can assess that and make that determination.

What happens a lot is that a search will be done and there will be numerous images that are found. Not all of the images constitute child pornography. Sometimes, it’s only a fraction of what’s found that constitutes child pornography because there’s certain criteria that have to be satisfied. Not everything constitutes child pornography. Not every picture of a child constitutes that. So, that’s why you have to have that technical knowledge.

Normally, you’ll sit down with an FBI agent and go through the images. You’ll have a pretty frank discussion about “Well, this doesn’t violate the law. This is not child pornography,” and, if it’s necessary, argue it before a judge. I’ve had cases where someone had a few hundred images on their computer of which five constituted pornography.

This is still significant, because even if there’s a mandatory minimum of five years that’s not the maximum. The maximum is 20 years, potentially, per image. But there are certain sentencing enhancements that may be triggered depending on the number of images that are deemed to be child pornography. And, for example, if there are videos, videos are counted as 75 images. So, you have to know what you’re doing in these cases.