Defendants accused of possessing multiple images of child pornography can only be prosecuted for one offense, without regard to the number of images or how many children are depicted, the state Supreme Court ruled Thursday.
By Steve Miletich Seattle Times
Related
· State v. Sutherby (PDF)
· State v. Sutherby (Concurrence/Dissent)
· State v. Sutherby (Dissent)
Defendants accused of possessing multiple images of child pornography can only be prosecuted for one offense, no matter the number of images or how many children are depicted, the state Supreme Court ruled Thursday.
The 8-1 ruling drew a sharp dissent from Justice James Johnson, who said defendants should not be entitled to a “volume discount.”
It also drew criticism from the King County Prosecutor’s Office, which said the ruling will have “statewide implications” and lead to shortened sentences for people convicted of possessing a large volume of child pornography.
The court’s decision came in a Grays Harbor County case in which a jury convicted Randy Sutherby in 2005 of child rape and molestation of a 5-year-old female relative.
He also was convicted of 10 counts of possessing depictions of minors engaged in sexually explicit conduct, relating to images of other children found on computer files in his home. The judge, at sentencing, reduced the counts to seven based on a new interpretation of the images.
In its decision, the Supreme Court sent the case back to Grays Harbor County, ruling that Sutherby could only be sentenced for one count of possessing child pornography because of the wording of state law.
In a separate 6-3 vote, the court also overturned the rape and molestation convictions, finding that Sutherby was poorly represented by his trial attorney.
Writing for the majority on the child-pornography issue, Justice Debra Stephens said state law makes it illegal to possess “any” visual or printed image depicting a minor engaged in sexually explicit conduct.
The court, in other cases, has consistently found the word “any” means everything, regardless of the quantity, Stephens wrote.
Johnson wrote that the majority’s opinion undermines the state Legislature’s intent to suppress the demand for child pornography by allowing stiffer punishment for possessing multiple images.
Ian Goodhew, deputy chief of staff in the King County Prosecutor’s Office, said the Legislature should address the ruling “to ensure that possessors of child porn are punished for the actual harm that they cause to each child depicted.”
“The possession of child pornography is extremely troubling when you consider that in each image a child is being forced to engage in a sexual act,” Goodhew said. “Each child suffers real harm in every image.”
The court, he said, found there is no difference between possessing one or 100 images.
The sentencing range for one count of possessing child pornography is 12 to 14 months in prison for first-time offenders, Goodhew said.
The range has increased to 26 to 34 months for two counts and more for each additional offense, he said.
But under the court’s ruling, additional time won’t be allowed even if a defendant possesses “thousands of images” of children being raped, he said.
James Lobsenz, a Seattle attorney who represented Sutherby on appeal, said the law already allows the makers of child pornography to be punished for each time they produce an image of a minor.
But a people looking at the material — who generally possess large quantities — don’t victimize minors in the same way, Lobsenz said.
“I think the court got it right,” Lobsenz said. “The Legislature did not intend to make astronomical sentences that kept getting increased and increased and increased because you possessed more than one.”