Cyberporn Essay - California and Lewd Matter to a Minor Over the Internet
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California and Lewd Matter to a Minor Over the Internet
On August 3, 2000, the California Court of Appeals for the First Appellate District, Division Five, affirmed the conviction of defendant on two counts of attempting to distribute or exhibit lewd matter to a minor via the Internet.(People) This essay explores the development of this verdict.
The Court rejected defendant's Commerce Clause and First Amendment challenges to Cal. Pen. Code §§ 288.2(b) which makes it a crime for every person "who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet ..., to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony."(Ibid)
Pursuant to an undercover investigation on the Internet, defendant initiated two "instant messages" with a detective posing as a 14 year old boy. During the electronic conversations, defendant sent photographs, made an offer to engage in specific sexual acts and invited the boy to meet him at his house.
The Court held Section 288.2(b) did not violate the Commerce Clause because "no legitimate commerce would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them."(Ibid)
Rejecting defendant's argument that the statute subjects Internet users to inconsistent regulations, the Appeals Court distinguished the instant statute from the law challenged in American Libraries Ass'n. v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).(American)
The Pataki Court held the New York statute violated the Commerce Clause because "The nature of the Internet, like that of rail and highway traffic, requires a 'cohesive national scheme of regulation so that users are reasonably able to determine their obligations.'" Absent national regulations, according to Pataki, Internet users would be subject to inconsistent local statutes regulating the content of their communications.
The California Appeals Court found determinative the "knowledge" and "intent" elements missing from the New York statute, but present in Section 288.