Crime Scenario and Prevention Measures in Nepal

Crime has an age as old as civilization itself. In this world, it is difficult to find a place where there is no crime. The only difference is the type and the method of crime. Several crime issues such as kidnapping, raping, murdering, drug trafficking, hijacking are rampant everywhere in the world. Crime rates and crime types are different in developed and undeveloped countries. Advancements in knowledge and technology allows people from developed countries to use the law, computer and internet to commit crimes in majority where as in the developing countries we can witness the direct crimes such as murder, kidnapping, raping, girl trafficking etc.

There are several reasons why the crime rate is increasing worldwide. Lack of education, greed, laziness, and poverty are the common reasons for the soaring crime rate. Still there are several other socio-economic issues needs to be dealt in the developing nations. Human rights have been a slogan for the developed countries only. Still there are people in this 21st century where they have no food to eat, clothes to wear and house to live. Education, equality in gender, and safety is way too far in these communities. Crimes are associated with several socio-economic issues such as poverty, illiteracy, unemployment, natural disasters, family and societal influence. A society is only safe, crime free and worth living when people have education, and can differentiate between good and bad. Utilitarian approaches, universalism approaches then slowly would develop as they become mature.

Obstacles in Crime Control:

The laws: The laws itself is not strong enough in Nepal to control the crime. There are several faults in the law and people are taking advantage of that.
Impunity: Crime rate would be controlled to some content it there was provision against impunity. Even the government officials are responsible for crime and get easily out of that. Due to impunity, people are encouraged to commit even more crime than before because they feel there is always someone to protect them.
Inefficiency of Police: Police in Nepal is way too ineffective. It may be because of the absence of the proper training and modern techniques for the crime detection. One simple case takes years to resolve and people don’t even have confidence of police officers. When people even don’t believe the police where should they go for justice?
Forensic techniques: Lack of advancement in forensic methods has certainly clouded the cause of crime and is unable to give the proper justification of the crime method.
Slow Court Procedure: The inefficiency of court is the another reason for increasing crime rate. One case takes years to settle down.
Lack of eduction:Lack of education in people is certainly a huge factor to consider because in this condition people cannot decide what is good and what is bad. A good speaker with evil intensions can easily drive these ignorant people by his impressive words and easily encourages them to commit a crime. The interesting thing here is the people who are doing this don’t realize that they are committing a crime.

How Crime can be decreased?

I would like to present several ideas how the crime rate can be prevented in Nepal. Child care programs can be designed to improve the personality of the kids and give them the right knowledge about the good and bad things. “Free education programs to all” should be provided so that no child or person is deprived from the right of education. Family support programs can be designed to keep the family united and foster child care. New employment schemes would certainly help is reducing the crime rate in Nepal where there are thousands of unemployed people. New court procedures can be developed and expedite the court efficiency and restructuring of the constitution and law itself to make the straightforward laws eliminating the room for crime.

Criminal justice is the very big term still to be introduced in the poor country like Nepal. The direct services that deal with the crime such as police, prison, court, probation, parole should have specific programs to deal with crime. More focus should be given in increasing police efficiency, 24-7 security services, and advanced training for the crime detection. A society will be only safe and worth living when they eliminate the roots of crime. The ultimate programs to eliminate the roots of crime are education, good child care programs, and advancements in forensic science, laws against impunity, and relief funds in the natural disaster and restructuring of the constitution to increase police efficiency and expedite court service.

The Nature of Crime and the Possibility of Solutions

With regard to the nature of crime, the various media have contributed to the blurring of fact and fiction. As a result, notions about the causes of criminal behavior have become distorted. In reality, people commit crimes simply because they chose to do so. The commission of a criminal act is not the result of behavior that suddenly happens. Criminals deliberately choose their course of action long before the subsequent act occurs. Yet, due to mass confusion, contemporary society deals with criminal behavior by explaining away such occurrences. A criminal act is seen as something abnormal and out of the scheme of “normal good” human behavior. Excuses abound and criminal behavior theory is typically pronounced in ways that are confusing and erroneous. As such, criminal behavior theory tends to revolve around therapeutic intervention, rehabilitation strategies and socio-political policy. Instead of assessing the poor choices people have the freedom to make, the external environment is examined to “justify” the aberrant behavior. And, although environment may be influential some degree, anyone can come up with an array of excuses. Such notions present scenarios where it is all too easy to mitigate criminal behavior on the basis of psychological dysfunction or oppressive social conflicts. The cops’ job is compounded by mixed messages, faulty intervention, misguided politicians and media distortions.

In short, criminal behavior assessment strategies must include good tactics. Criminals, like the rest of us, know exactly what they are doing. Their motives, means and methods are predetermined by them. Criminals basically control every aspect of their criminal behavior actions. They select their targets based on opportunity and the skill-sets they possess. Crimes are committed by people who seek personal gain for one reason or another. Solving the crimes that criminals commit requires a Holmesian eye for details and valid and perceptive interpretation. Good cops are effective and efficient problem solvers. They gather the facts and discount nothing until the evidence demonstrates otherwise. Figuring out the “why done it” of a criminal incident, and then following the leads to the “who done it” conclusion, requires patience and perseverance. There are no magic formulas or psychics to consult. It’s just a matter of applying experience, education and skills to the deductive process of careful investigation. Crime fighting is a continuum of painstaking observation and artful application of professional abilities. Profiling, for example, is only one imperfect tool among many tools. Criminal behavior analysis and subsequent criminal apprehension is an interdisciplinary continuum. The process draws on many aspects from autopsy to zoology. Assessment strategies must be proactively engaged in the evaluation of possible linkages between people, places and things. Assessing criminal behavior is an open minded part of the investigative process. Thinking skill, as related to all the possibilities, is a basic requirement. This is applied in contrast to drawing pre-judgmental conclusions. Suspending the inclination to make a snap judgment is important. Naturally, there is a tendency to play the odds and consider statistical measures of one sort or another. Yet, to hunt down criminals, proactive strategies are essential. An evolution in thinking must occur. Simplistic reasons about criminal behavior and the commission of crimes must be radically altered.

Case linkages, interviews and interrogations, science and technology must work together. Essentially, the fundamental characteristics of an investigation revolve around three basic concepts: information, interrogation and instrumentation. These basic principles are supported by other aspects that reinforce the process by which solutions are probable.

Criminal methods of operation become unique to the individual, although there may be general similarities. Each criminal may aspire to one level of society or another based on their behavior tendencies. His or her methods may be stifled or enhanced depending on education, training, fantasy, lifestyle, desire, ability and opportunity. He or she generally assesses the event based on a win or lose approach. This part pertains to the gain minus the risks involved in the commission of the incident. People tend to use what they know. They express their basic capabilities in their actions. We often apply our individual skill set depending on what we have learned. Criminals will pursue the path of least risk and resistance. Motive, means and method are still basic to solving acts of criminal behavior. As such, skills and abilities vary from one person to the next. Criminals choose to commit crimes because somebody else has something they want. Current sociological explanations for criminal behavior are far too general. Notions as to motive and intent are blurred by simplistic single causation theories and easy explanations.

Contemporary society has been misled about the nature of criminal behavior. And, not only is society misled and confused, but so are the various criminal justice systems. According to some, criminals are never responsible for their behavior. Excuses, easily invented, are readily available to rationalize away criminal behavior. We forget the motives, the why of what criminals do. Criminals, like the rest of us, play games with people. They know how to take advantage of vulnerabilities. Criminals look for opportunistic situations to exploit. The path of least resistance is essential. Early on, they have learned how to manipulate others and con the system. Our complex criminal justice system has become a legerdemain of smoke and mirrors, myth and metaphor. In addition, some of the academic types, operating under the disguise of academia, often point to the parents, neighborhoods, poverty, mental defect and anything else they can make up. Others will blame the police, prosecutors and judges. By “sleight of hand tactics”, using fallacies of inference, the truth becomes mired in fiction, television drama becomes reality. We are often deluged with reasons why there’s crime. This typically happens when the government reports the latest statistics. Academicians, clinging to ivory towers, may suggest changes in demographics, inadequate police budgets, complacency in “crime fighting”, and generally blame the government. We may even be told that violent crime trends by be a “statistical spike”. With such distractions, it’s easy to forget whose really responsible for crime: the criminals themselves. They make choices, knowingly and freely. Part of the investigative effort is to understand the thinking that criminals do. For the police, crime solving is challenging. Nothing is ever a simple task or an easy explanation.

To deter criminal behavior and solve crimes, strategies must be sure, swift, and methodical. There must also be a certainty of punishment. That’s what criminals can understand, which is the risk outweighing the gain. The nature of crime, in terms of the criminal, is beyond the simplistic notion of inner conflicts. It is a matter of selfishly wanting what someone else has. As long as we can come up with excuses for behavior, no one has to be responsible for anything. From a case solving perspective, the concept of free will and moral blameworthiness should not be replaced by notions of psychological or sociological determinism. These views allow the criminal to escape accountability. They cloud the motive, the means and method by which crimes are committed. Instead, such notions focus on the mythical protection of society through the reform of the criminal. As a result, sometimes before the criminal is caught, he or she has become the victim. A role reversal occurs. The real victim becomes forgotten in blur of a media blitz. Assessing criminal behavior, based on a profile of the crime, should focus on the facts of the case. Apprehension, deterrence and prevention of crime is a responsibility that belongs to law enforcement. Understanding the nature of crime concerns issues related to how individuals respond to the environmental. Preventive conditions must confront criminals at every turn. Consequences of criminal behavior must be met by skilled personnel, as well as technological and forensic strategies. Materials and resources must be expended to ensure competent case solving approaches. Early interdiction in criminal behavior would be an ideal situation.

Law enforcement must provide leadership in crime analysis, criminal behavior assessment, technological advances, forensic sciences and crime solving strategies. Highly qualified, competent and well-trained personnel are essential for the police agency. They must be recruited, trained and educated accordingly. Governmental budgetary processes must support effective and efficient police services. Urban planning and growth management must include the police as matter of public of policy. Community planning should be subjected to law enforcement oversight. Activities performed by the police that are not enforcement related should be reduced or eliminated. A careful in-depth job task analysis should be conducted in every agency. Part of the intent would be to maximize the number of officers dealing with operational and tactical issues, as opposed to administrative tasks. Solutions to crime can be found through an analysis of environmental opportunities and conditions which allow crime to occur. These are community oriented elements. Criminal behavior is self-learned behavior, and controlling crime involves reducing the opportunities for crime. Legal sanctions must be enforced to be effective if crime control measures are to succeed. The criminal must be treated directly for his/her criminal behavior and not rewarded for such behavior. There must be consequences. And, not treated indirectly as the symptom of some inner conflict. Crime control measures must be sure and swift. Excuses should not be used to escape accountability or responsibility. This applies regardless of one’s socio-economic status, political influence, judicial connections, corporate standing or price of legal counsel. Crime, criminal behavior and social disorder will not be controlled unless serious interdiction strategies are used to alter present approaches.

An Introduction To Cyber-Crime

Computer crime refers to criminal activity involving a computer. The computer may be used in the commission of a crime or it may be the target. Net-crime refers to criminal use of the Internet. Cyber-crimes are essentially a combination of these two elements and can be best defined as “Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly using modern telecommunication networks such as the Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)”. [1]

In its most simple form, cyber-crime can be defined as any illegal activity that uses a computer as its primary means of function. The U.S. Department of Justice broadens this definition to include any illegal activity that uses a computer for the storage of evidence. The term ‘cyber-crime’ can refer to offenses including criminal activity against data, infringement of content and copyright, fraud, unauthorized access, child pornography and cyber-stalking.

The United Nations Manual on the Prevention and Control of Computer Related Crime includes fraud, forgery and unauthorized access in its definition of cyber-crime. Cyber-crime in effect covers a wide range of attacks on individuals and organisations alike. These crimes may include anything from an individual’s emotional or financial state to a nation’s security.

There are two main categories that define the make up of cyber-crimes. Firstly those that target computer networks or devices such as viruses, malware, or denial of service attacks. The second category relate to crimes that are facilitated by computer networks or devices like cyber-stalking, fraud, identity-theft, extortion, phishing (spam) and theft of classified information.

In order to highlight the scale of cyber-crime globally, the Norton Cyber-crime Report 2011 revealed 431 million adults in 24 countries had been victims’ of cyber-crime in that year. Computer based crime is escalating at an alarming rate. In the report Norton calculated the financial cost of global cyber-crime at $388 billion. This is more than the combined international market for marijuana, heroin and cocaine, estimated at $288 billion. Assuming its current growth rate continues, cyber-crime will soon surpass the entire global drug trafficking market that is estimated to be worth $411 billion annually.

Cyber-crimes have expanded to include activities that cross international borders and can now be considered a global epidemic. The international legal system ensures cyber criminals are held accountable through the International Criminal Court. Law enforcement agencies are faced with unique challenges and the anonymity of the Internet only complicates the issues. There are problems with gathering evidence, cross-jurisdictional issues and miscommunication related to reporting.

It is widely known that victims of Internet crimes are often reluctant to report an offence to authorities. In some cases the individual or organization may not even be aware a crime has been committed. Even though facilities for reporting incidents of cyber-crime have improved in recent years many victims remain reluctant due essentially to embarrassment.

International cooperation is essential if an effective response is to be found against global cyber-crime. No nation can expect to effectively combat the issue alone. Many computer based crimes are initiated ‘off-shore’ and this presents enormous challenges to any nations law enforcement agencies. It is critical that agencies from around the world formulate actionable plans to detect, follow, arrest and prosecute cyber criminals.

For example, in the past two years Australia has adopted the National Criminal Intelligence Fusion Capability, a key element of the Commonwealth Organized Crime Strategic Framework (COCSF). This body brings together expertise, data and technology across a range of government and law enforcement agencies and enables international collaboration.

The problem of cyber-crime seems almost immeasurable in size. Looking at recent trends and advances in mobile technology and cloud computing we realize it is an ever-evolving and rapidly changing dynamic. There is growing evidence globally of newly formed partnerships between government and industry aimed at prevention. These partnerships create opportunities to share information and bolster law enforcement response to organized Internet-based crime.

This sharing of information creates concerns in its self. It is an extremely complex and sensitive issue. A balance must be found in efficiently maximizing distribution of information and protecting it from the organized cyber-criminal element.

Cyber-crime covers such a broad scope of criminal enterprise. The examples mentioned above are only a few of the thousands of variants of illegal activities commonly classed as cyber-crimes. Computers and the Internet have improved our lives in many ways, unfortunately criminals now make use of these technologies to the detriment of society.

[1] Halder, D., & Jaishankar, K. (2011) Cyber crime and the Victimization of Women: Laws, Rights and Regulations. Hershey PA, USA: IGI Global. ISBN: 978-1-60960-830-9

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Does Crime Pay?

Crime is defined as “a breach of a rule or law for which a punishment may ultimately be prescribed by some governing authority or force” (Crime). What if crime did not exist? Who would fund public works? How many professions would not exist? Would the county require more funding from federal and state grants? Among other things, isn’t it true that the derivative of crime is financial punishment? Is crime financially detrimental or beneficial to society? In this case study the authors will attempt to answer these questions. Using a sample, the authors will prove that the funds derived from crime offset the cost of crime. Furthermore, this report will provide the findings of a detailed analysis of the cost- benefit relationship, which includes the financial impact and benefit that crime imposes on society. In this report it will be determined that crime acts as an economic stimulant. Rather than focusing on the morality of crime, the authors will focus on the financial and economic impact of criminal activity.

The first step in the process was to select a sample to analyze. The sample size became important because it needed to be an accurate representation of the population. The authors chose Chester County, Pa because of its relevancy to West Chester University. Next, the authors gathered and compiled multiple financial statements. These included the Statements of Disbursements and Receipts from each district court along with the Chester County Budget. For the purpose of finding revenues and costs directly or indirectly related to crime, the data was extracted from these documents (Refer to Exhibit 1).

The formulated crime “income statement,” constructed by the authors, proved their financial assumptions to be truthful and accurate. The finalized “income statement” stated that revenues and costs were nearly equal. Therefore, the cost of crime directly offsets the revenues derived from crime. Furthermore, Chester County encountered a realized gain of approximately two million dollars. Based on this analysis, it is fair to state that crime is slightly financially beneficial to Chester County. This idea concludes that no extra state or government funding would be necessary if crime did not exist. One must be advised that during the analytical process the authors were forced to make reasonable and fair estimations because of the lack of specific information and resources. In order to be as accurate as possible, the authors separated the costs into their respective categories based on civil and criminal cases reported by the magisterial district courts. (Refer to Exhibit 1, *1). The general health and well-being of a community is important to all residents of Chester County. A stable economy is essential for positive resident/county relationships. Crime stimulates the local economy in many ways. The economic benefits directly and indirectly related to crimes are countless. The authors decided to cite a few of these benefits.

First, in determining the effect crime has on public works, two aspects must be considered. One is that public works are funded by state and federal grants and not revenues received from criminals. Therefore, one would believe crime has no effect on public works. Or does it? Community service is another form of punishment that usually parallels financial reprimands. In fact non- violent criminals contribute their labor to the economy and other public betterment projects. This “free labor” ensures the completion of public works and the overall well being of the community. If a monetary amount can be allotted to community service, then the excess public work cost above community service revenue can only be funded by the state Secondly, there are many jobs that are directly related to the existence of crime. These professions most commonly range from lawyers, judges, and law enforcement/ probation/ parole officers, to prison security and corrections officers. Most of these local municipality jobs provide decent salaries and life long employee benefits to their respective employees. The average salaries of uniformed police officers range from forty to sixty thousand dollars annually, not including bonuses and overtime (Police Patrol Officer). Lawyers who practice law for more than four years on average make ninety thousand dollars, forcing them into a higher tax bracket (Salary Survey). Without crime high paying jobs would move toward extinction. Therefore, the county would receive less tax payments. Most lawyers are not collecting salaries from the local government, yet they make a decent living. With no more crime, lawyers, judges and law enforcement officers may still exist for civil matters, but not at their current capacity.

Other major professions that would be affected by the elimination of crime are the U.S. Armed Forces. Many Marines, Army, Air Force and Navy personnel reside in Chester County, including one of the authors, Marine Corporal Cianci. In fact, there is an Army National Guard base located in the center of West Chester, Pa. Without crime there would be a decline in the capacity of the armed forces. The loss or decrease of these crime dependent jobs would damage the local economy. The education system is another entity that is affected by crime. Chester county colleges such as West Chester University, Penn State Great Valley, and Immaculata University are well known for their criminal justice programs. Without crime, classrooms would be empty and teachers would be unemployed. Universities would be forced to downsize. The criminal justice curriculum would cease to produce revenues. Universities that base their curriculum strictly on law would be disseminated. Finally, the reader must consider how manufacturing plants affect the local economy. Law enforcement officers drive specifically manufactured vehicles that aid their crime fighting abilities and even make it possible. These vehicles are equipped with lights, sirens, and custom made seats. Ford, General Motors, and Chrysler are the three major U.S. car manufactures responsible for law enforcement vehicle assembly (Police Cars). If crime were to be eliminated the manufacturing segment of the economy would be tarnished. Decreased manufacturing would lead to a decrease in the Gross Domestic Product. The principles of economics determine that manufacturing facilities harbored in the United States provide a greater economic benefit than imported vehicles.

The authors’ examinations determined beyond reasonable doubt that crime influences economic infrastructure. Without crime an intricate slice of the economic pie would be missing. The most important form of influence results from the cash flow that crime creates. The revenues pulled in by district courts, which is disbursed to the state and redistributed, benefits individual communities and the county as a whole. It is critical to reiterate the jobs and opportunities that stem from crime.

Now, consider the previously established definition of crime. This definition is an essential element in determining the “other” financial and economic benefits crime provides. At this point one may be thinking, “where is this going?”

Thus far, the authors have focused on the action of crime and the “law’s” reaction. The “law” includes all legal and judicial persons of who associate themselves around the legality of criminality. What about crime that is financially punishable by private institutions? These privately owned institutions include college universities, banks, apartment complexes, residential communities, libraries, movie/game rental franchises, medical/dental establishments, and trash/recycling entities. The privately owned establishments are the governing force. Therefore the crimes, not punishable by the court of law, are breaches of rules consequently resulting in fines and fees. These fines and fees are collected for cancellation charges, late returns, late payments, “no shows,” and bank overdrafts. Furthermore, these revenues are cost free. They could be characterized as pure profit without expense. In some cases they even reduce cost.

In the case of late fees the governing force is the college university. Yes, the university is state funded, but the tuition late fee payment benefits the school. Does all of this not fuel the economy? Finally the authors will examine the privately owned drug and alcohol clinics and classes that one must take to avoid a conviction and escape sentencing. These establishments including COAD (Chester County Council on Addictive Diseases), located in Exton, Pa, are individual entities, separate from the state, and do not include their revenues in the Chester County budgets. For example, COAD charges an individual arrested for driving under the influence approximately three hundred dollars for enrollment in local government mandated classes. The compilation of such money stimulates the local economy and influences a greater enhancement of the Chester County community relationship.

In conclusion it would be vindictive to assume that crime is strictly detrimental with regards Chester County’s financial stability and economic infrastructure. In order to tie everything together one must imagine the big picture. The cash flow cycle responsible to crime has a deep impact on the local economy. Does crime pay? Yes crime pays for itself, and also provides an economic benefit to Chester County and its subsidiaries.

(Exhibit 1) Chester County, Pennsylvania, 2006-Revenues from crime received by law enforcement and court authority $51,026,376. Cost that would be eliminated without crime $56,328,802. Gross income equals $2,309,780.

Defending People Charged With Internet Crimes

According to reports published by the United States Federal Government, in the mid-1980s, trafficking of child-pornography within the United States was nearly eradicated through successful campaigns by federal and state authorities.

In the 1980’s, producing child pornography was difficult and expensive, however, with the advent of computers and the internet, child pornography has become easier to acquire, reproduce and store.

Digital cameras and the ease in which images and movies can be posted on the internet, combined with a world wide web which has no borders, has made it easy for distributors and collectors of child pornography to obtain the illegal photographs and videos. Although most people have some knowledge about the vast amount of pornography located on the internet, The National Center for Missing & Exploited Children has estimated that 20% of all internet pornography involves children.

Legally speaking, 20% of the pornography located on the internet is illegal to possess in the United States.

As a result of the increase in the availability of child-pornography, federal and state convictions for crimes related to child-pornography has increased. Recently, the United States Department of Justice announced a national strategy for eliminating child pornography. The effort includes nationalized databases allowing states to share information and the hiring of 38 assistant U.S. Attorneys across the United States to prosecute child pornography crimes.

A person must merely open a newspaper or watch the television to find a news article or picture of a person whose name and reputation is ruined by state or federal charges related to possession of child pornography.

Instead of focusing on the people producing child pornography, efforts have shifted and law enforcement is now targeting people who possess child pornography. In order to help prosecute regular citizens, the federal government has partnered with internet search engines to find people searching for, downloading and possessing child pornography.

Computer crimes are not limited to simply possession or distribution of child pornography.

Many people have seen television shows where law enforcement uses a computer to lure unsuspecting people into illegal situations (e.g., NBC’s documentary, To Catch a Predator, etc.).

In such situations, a law enforcement officer poses as a minor and lures a unsuspecting person to a location; the location is usually portrayed as the minor’s home. When the unlucky person arrives at the minor’s home, television cameras record the subsequent conversation between the surprised adult and law enforcement.

Sometimes, the unlucky person believes (or hopes) he or she may be able to “talk their way out” of a potential arrest; however, the statements made by the person is recorded and likely used by a prosecutor as the basis for a criminal prosecution.

In short, sex crimes, internet crimes and computer crimes are a primary focus of state and federal law enforcement throughout the country.

Examination of the Computer

In any case involving a computer, it is critical to use a computer expert in any child pornography case. The use of such experts can help establish a defense to the crime by showing some of the following:

• When an illegal file was downloaded;
• Which computer program was used to download an illegal file;
• Which computer user downloaded an illegal file;
• Whether the illegal file was placed on the computer as a result of a computer virus;
• Whether the illegal file was placed on the computer by somebody “hacking” into an unsuspecting user’s computer, and;
• Whether the people portrayed in the images and/or movies are actually “children” or models above the legal age of consent who are “posing” as a minor.

Unfortunately, most attorneys do not have sufficient knowledge about computer technology to even consider the use of computer experts. Most attorneys without sufficient computer background simply believe that if child pornography is found on a computer, the person is “guilty”.

Examples of Common Situations

Throughout the United States, prosecutors can file variety of different charges against a person for using a computer for what may appear to be legal activities.

Three common examples are provided:

Example #1: A suspect looks for pornographic material on the internet and subsequently downloads both legal and illegal materials (e.g., child pornography, etc.). The illegal materials actually come from a website which is operated by the federal government for the sole purpose of finding and arresting people who download child pornography. Once the illegal materials are downloaded from the law enforcement computer, a warrant is requested from a local court and the computer is seized and searched.

The person is arrested even if they didn’t know the materials downloaded onto their computer were illegal.

Many people believe that if a website looks “legitimate”, the materials that come from that website must be legal to possess (e.g., pictures, videos, etc.); however, such an assumption is not true.

As indicated, the federal government has set up “legitimate” looking websites which provide child pornography. The sole purpose of the website is to lure a person into committing illegal acts (e.g., downloading an illegal movie and/or picture, etc.) and then arresting that person for downloading and possessing the illegal item provided by the federal government.

Example #2: Similar to the example above, a suspect uses a “peer-to-peer” file sharing program to download pornography (e.g., LimeWire, Bittorrent, BearShare, etc.). Unbeknownst to the suspect, some of the pornography downloaded is actually child-pornography, and it comes from a computer owned and operated by law enforcement. Once the illegal materials are downloaded from the law enforcement computer onto the suspects computer, a warrant is requested from a local court and the computer is seized and searched.

Another example is when law enforcement uses those same “peer-to-peer” file sharing programs to “search” for illegal child-pornography. Once law enforcement finds illegal materials, a computer program determines the TCP/IP address of the computer which houses the illegal materials. With the TCP/IP address, law enforcement can issue a warrant to determine the location and address of the suspect computer. Once law enforcement knows the physical location of the suspect computer, another warrant is obtained allowing the search and seizure of the computer.

Example #3: A suspect contacts a person believed to be a minor through a chat room on the internet. The minor is actually law enforcement. Through several conversations, the suspect is either encouraged to send naked pictures, or, in the worst-case scenario, the suspect is badgered into a personal meeting with the minor only to arrive at a pre-arranged destination and have law-enforcement waiting to arrest the suspect.

The three examples are common situations where people are charged in either federal or state court, however, the examples provided are not the only actions which can result in criminal charges.

Federal Charges relating to Child Pornography

Federal law makes it a crime to possess or distribute child pornography. Specifically, Title 18, section 2252 and 2252A of the United States Code criminalizes possession or distribution of child pornography.

Federal law defines child pornography as any visual depiction (pictures, video, data stored on a computer, etc.) which involves a minor engaged in sexually explicit conduct.

Title 18, section 2256 of the United States Code contains several definitions relating to crimes involving child pornography; the following simplified definitions are provided:

Minor: The term “minor” as used in the federal law, means a person under the age of 18.

Sexually Explicit Conduct: The term “sexually explicit conduct” as used in the federal law, means any sexual act, including material which simply shows a child’s genital area.

Visual Depiction: The term “Visual Depiction” includes film, videotape, or other data stored on a computer, or computerized data or any data able to be converted into a picture or film.

Although there are several different criminal provisions of the United States Code relating to computer crimes, charges and penalties associated with child pornography are provided:

Receiving or Distributing: If a person receives or distributes child pornography, that person is subject to imprisonment in a federal prison for a mandatory minimum sentence of five (5) years.

Title 18, U.S.C., § 2252(a)(2); § 2252A(a)(2) (2010).

Transporting: If a person sends, gives or provides child pornography to
another person in any manner, (e.g., via mail, email, any
electronic means, etc.), that person is subject to imprisonment
in a federal prison for a mandatory minimum sentence of five (5) years.

Title 18, U.S.C., § 2252(a)(1); § 2252A(a)(1) (2010).

Possessing: If a person possesses, in any manner, child pornography, that person is subject to imprisonment in a federal prison for not more than ten (10) years.

Title 18, U.S.C., § 2252A(a)(4)(b); § 2252A(5)(B) (2010).

In essence, federal law makes it a crime for any person to possess materials which display a person under the age of 18 nude, genitals exposed or engaged in any sexual activity.

When representing a person charged with a crime involving child pornography, it is important to fully understand the differences between the potential charges and the risk of incarceration for each.

Significantly, if a person pleads or is convicted of a crime involving the possession of child pornography, there is no mandatory minimum sentence; however, if a person pleads or is convicted of receiving, distributing or transporting child pornography, there is a mandatory minimum sentence of five (5) years imprisonment.

State Charges for Child Pornography

In essence, all states makes it a crime to possess pictures or movies which portray a child’s genitals, pubic area or breasts (in the case of a female), if the child is under a certain age.

Common examples of illegal behavior are easy to image (e.g., a person possessing video tapes or pictures of underage children, etc.); however, the statute also criminalizes the possession of digitalized images and movies which can be stored on a computer or cellular phone. As such, if a person receives an illegal picture through email, and the person has a phone which receives email, a person could be charged and convicted simply for illegal items accidentally saved on their phone. Further, with the increasing popularity in cellular phones which are capable of taking pictures and recording movies, many more people are at risk of criminal charges for simply taking and saving illegal pictures.

Many state laws make it a crime for anybody to make a picture or video which shows a person under the age of 18 with his or her genitals exposed in any manner or engaged in “sexually explicit conduct”.

This includes pictures made with a cellular phone or a digital camera.

Prosecutors in many states have used this statute to prosecute people for merely downloading or copying images from the internet and then saving those pictures onto the hard-drive of a computer.

Restated, if you are downloading images and/or movies from the internet and then saving those images and/or movies on your computer, you may be charged in state court with the crime of manufacturing child pornography under the above statute.

Common Defenses in both State and Federal Court

Regardless of whether criminal charges are filed in state or federal court, there are many issues which should be examined by an experienced criminal defense attorney familiar with computer crimes.

The same issues arise whether the crime involves child pornography, sex crime or general internet crimes.

Although not limited to the following, several common issues which frequently arise are analyzed.

Knowing possession

In both state and federal court, in order to be convicted of the crime “possession of child pornography”, a defendant must knowingly possess child pornography, that is, the person charged must have knowledge of the existence of the child pornography.

This means the government must prove, beyond a reasonable doubt, that the person accused had knowledge of the existence of the child pornography.

Giving a Statement

Many defendants mistakenly believe if a reasonable explanation is provided as to “why” child pornography is on a computer, criminal charges can be avoided.

Restated, many defendants believe that providing an honest statement to law enforcement will help avoid being arrested or facing criminal charges.

That is not true.

When a defendant provides a statement to law enforcement, the statement will likely be used against the defendant during a criminal prosecution.

A criminal defense attorney should try and suppress any statements given by a defendant which, in any way, provide a link between the defendant and any child pornography found by law enforcement. A Motion to Suppress should be filed regardless of whether the defendant was in custody when the statement was given.

Many people believe statements given by defendants can not be suppressed if law enforcement provides Miranda warnings. This is also not true. An attorney should try and suppress statements given by a defendant even if law enforcement provides Miranda warnings.

Recent case example

In one recent case, an older, married man was suspected of possessing child pornography based upon activity to known websites containing child pornography. The gentleman lived with his wife in the suburb of a large city and had lived in the same neighborhood for years.

Law enforcement did not have enough evidence to get a warrant to enter the suspect’s house and seize the computer. Because they couldn’t get a warrant, law enforcement decided to walk up to the man’s house and talk to him to see if they could gain access to the house voluntarily.

In arriving at the house, law enforcement waited until approximately 7:30 p.m., when it was dark, and all the people in the neighborhood were home. Three federal agents and some local police came to the older man’s house. After convincing the man that they should be allowed into the house, the authorities also convinced the man they should be allowed to “examine” the computer within the house.

In short, law enforcement coerced the gentleman to verbally provide permission to search the computer. Law enforcement threatened to stay in the man’s house for several hours while they attempted to get another search warrant. Law enforcement also threatened to seize and take several items which belonged to the man’s wife.

The man believed if he did not give consent, multiple officers would arrive in the neighborhood with the lights on their patrol cars flashing, law enforcement would stay in the house for hours, search through all of his items and his wife’s items, and ultimately take several things which belonged to him and his wife.

After several hours of badgering, and believing he had no other choice, the man finally admitted he may have downloaded child pornography, provided verbal consent and the computer was seized. Shortly thereafter, the man was federally indicted because his computer contained child pornography.

In the above example, an attorney should challenge whether the officers even had the right to go to the man’s house and talk to the older gentleman. An attorney should also challenge the verbal consent and statement given by the older man on the basis the consent was coerced. Finally, an attorney should challenge whether the officers had the right and authority to examine the computer because the wife did not give consent and both parties had access to the computer.

Initial Seizure of the Computer by Law Enforcement

In all criminal cases involving a computer, it is likely that law enforcement will seize the computer and subsequently perform a forensic search of the computer.

Although all law enforcement has different procedures for an initial search and seizure of a suspected computer, an experienced criminal defense attorney should ensure all procedures were followed properly.

The failure of law enforcement to follow proper procedures in analyzing a computer for the presence of child pornography can result in charges being reduced or completely dismissed in some cases.

Recent case example

In a recent case, a defendant’s computer was seized and subsequently examined by a computer expert hired by local law enforcement. The expert reviewed the computer and found what was believed to be child pornography.

When deposing the expert, attorneys discovered the expert did not follow procedures and protocol required by both federal and state law. Because the proper procedure was not followed, several motions were filed and arguments were made in court to have the charges dismissed. After several days of arguing, the prosecuting attorney finally agreed to a substantial reduction of charges.

Recent case example

In one recent case, a computer was seized by a person suspected of possessing child pornography. A close examination of the computer and suspected child pornography resulted in the discovery that the pictures believed to be “illegal” were downloaded from a commercial adult website and the alleged “children” were adult models.

In that case, the owners and creators of the website were contacted and records were sought to demonstrate the people within the pictures were actually adults.

Determining who had access to the Computer

In most households, multiple people have access to a computer. Sometimes, people even allow friends, relatives and neighbors access to a computer. We have represented clients charged with crimes simply because the person allowed other people to use their computer.

In such cases, it is important to thoroughly consider all people who have had access to a computer to determine possible defenses. Such information is critical in establishing the party responsible for putting illegal material on a computer.

Recent case example

A defendant was recently charged with possession of child pornography, however, the defendant lived with three (3) other people. A detailed examination of the computer determined most of the illegal materials were downloaded onto the computer between 8:00 a.m. and 5:00 p.m. during the regular work-week. Because the defendant worked a regular job during the day, employment records were sought and ultimately, a significant amount of doubt was cast upon who, exactly was responsible for downloading the illegal materials, and the defendant accepted a very good plea agreement which completely avoided the risk of lengthy imprisonment.

Limewire and other “peer-to-peer” networks

Although many people use software such as Limewire for legal purposes, some people download child pornography using such software.

When a person is facing charges which involve “peer-to-peer” networks, such as Limewire, Kaza, etc., an attorney with technical knowledge can quickly look at a computer to determine whether the material may have been downloaded “accidentally.” Restated, an experienced attorney can look at the manner files were downloaded onto a computer to determine whether a person was intentionally seeking illegal materials such as child pornography or whether the person accidentally downloaded child pornography.

Remember, the law requires a person “knowingly” possess child pornography. Possession of pornography involving adults is not a crime. The government must prove, beyond a reasonable doubt, a defendant knowingly possessed the illegal image(s) and/or video(s) and the person charged must have reason to know of its true content and character (e.g., that the material is illegal, etc.).

As such, if a person did not intentionally download child pornography, it is likely the person would not know the illegal item was located on their computer. An attorney with computer knowledge will examine a computer to determine whether illegal files were likely downloaded accidentally.

Further, experienced hackers can access a person’s computer through an internet connection and store illegal materials on the computer of an unsuspecting person.

Restated, pedophiles with computer knowledge can hack your computer and use your computer to store and access their illegal child pornography without fear of getting caught.

Use of Computer Experts

As noted above, although it is important to have an attorney who possesses significant computer knowledge, it is also important to have a computer expert on your team who can provide testimony, if necessary, to the technical issues which arise when defending somebody charged with a computer crime.

Recent case example

In a recent case, a defendant was charged with several counts of possession of child pornography based upon images and movies found on his home computer. The defendant’s computer was seized by law enforcement and later searched by law enforcement when the computer was at the police station.

When deposing the police officers who searched the Defendant’s computer and found the illegal material, I discovered the “expert” did not follow procedures and protocol required by both federal and state law.

Simply stated, the police officers did not follow the required technical procedures when searching for pornography on the Defendant’s computer.

Recognizing the problem, the client retained a computer expert who also reviewed the analysis done by law enforcement. The expert wrote a report showing the technical mistakes made by law enforcement, and how those mistakes impacted the Defendant’s ability to establish a defense.

Those mistakes were the basis for defense motions to dismiss the charges for violation of the defendant’s constitutional rights. Ultimately, the prosecuting attorney agreed to a substantial reduction of charges.

Punishment in Federal Court

If a person is convicted of a crime involving a computer or the internet in Federal Court, the person will be sentenced based upon the Federal Sentencing Guidelines.

Although no longer mandatory, the Federal Sentencing Guidelines is a compilation of written standards which exist all across the nation to help equalize sentences for similar crimes. The Federal Sentencing Guidelines (hereinafter “The Guidelines”) provide a framework for judges to follow when determining an appropriate sentence for an offender. The Guidelines help ensure that a person convicted of a federal crime in one state receives a similar sentence to another person convicted of the same crime in another state.

With respect to a crime involving child pornography, the term of imprisonment for a convicted defendant can increase significantly based upon factors outlined within The Guidelines.

The following enhancements may apply in a case involving child pornography.

Prepubescent Minors: If the materials found on a computer (e.g., pictures and/or movies, etc.) involve a “prepubescent minor” (e.g., a minor who had not attained the age of 12 years), an increase in the sentence is warranted.

Use of a Computer: If a computer is used to access, distribute and/or store the illegal materials, an increase in the sentence is warranted.

Sadomasochistic Conduct: Depictions of sadistic or masochistic conduct or other depictions of violence in the materials requires an increase.

According to recent federal decisions in the issue, penetration of children (in any manner) qualifies as “sadomasochistic conduct” because the courts believe forced sex of a child is painful and, as such, “sadomasochistic”.

Number of Images: An increase in the sentence is also warranted if the number of images located on a computer is more than 10 images. A substantial increase is warranted if there are movies and/or videos located on a computer. One video counts as 75 images, and videos substantially longer than 5 minutes may require an upward departure.

In short, after considering all of the factors which impact a potential sentence, it is not uncommon for a person convicted of possession of child-pornography in Federal Court to have an average sentence somewhere between eight (8) and fifteen (15) years.

Enhancements exist in Federal Court for every type of computer crime, not just possession of child pornography.

Punishment in State Court

As indicated, in every state, felony charges exist for sex crimes, internet crimes and computer crimes.

As in Federal Court, there are many factors which can impact a judge’s decision in imposing a sentence. An experienced attorney will ensure a Court is aware of all favorable factors before a defendant is sentenced.