Editor’s Note: Mark O’Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.
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Law enforcement seized electronics from Jared Fogle's home as part of investigating his former employee
Mark O'Mara: The incident offers a good teachable moment on the insidiousness of child pornography crime
Jared Fogle, famed pitchman for the Subway restaurant chain, has some problems. On Tuesday, law enforcement investigators confiscated electronics from Fogle’s property in Zionsville, Indiana, while helicopters hovered overhead.
The seizure was very likely part of an investigation into the case of Russell Taylor, who had been charged two months ago with breaking federal child pornography laws. At the time of his May 6 arrest, Taylor served as the executive director of The Jared Foundation, Fogle’s outreach program.
Fogel is not charged with anything, and federal authorities say he is not under investigation. But if any of the seized devices contain child pornography, and if he had access to it, Fogle may soon face charges as well.
Whatever the meaning of the confiscations from Fogle’s property, the incident offers a good teachable moment on child pornography crime.
Child pornography is a particularly insidious crime. In the cases I’ve encountered, perpetrators often develop an addiction to pornography, and those with an unhealthy psychosexual make-up, with an attraction to minors, tend to gravitate toward images and videos of children in sexually explicit situations.
The spectrum of pornography is broad, and much of it is legal. Pornography determined to be obscene is not protected and is illegal. For the perpetrator, the transition from viewing legal pornography to illegal pornography can be gradual: In the mind of the viewer, there’s not always a clear distinction between one type of pornography and another.
In the eyes of the law, however, one distinction is very clear.
Child pornography is defined as any visual depiction, including any photograph, film, video or computer generated image where a minor is involved or engaged in sexually explicit conduct. While many perpetrators see viewing child pornography as a victimless crime, the children are very obviously the victims – and judging by the volume of illicit content confiscated in the average child pornography bust – there is a heart-breaking glut of victims.
All states have outlawed the possession, distribution and production of child pornography. Distribution and production garner particularly harsh sentences that can stretch on for decades. Possession of child pornography is considered less severe and involves the possibility of incarceration and probation. But the consequences of a child pornography conviction do not stop at probation.
Many states identify these defendants as sexual offenders or predators, requiring individuals to register where they live to avoid living near schools, parks and other places where children congregate.
Sexual predators may be required to undergo treatment; they may be denied access to the Internet; and they may be required to submit to ongoing polygraphs to document compliance. And then there is the social stigma of being labeled a sexual predator and the devastating consequences it can have on a person’s ability to find jobs and be accepted in society.
Child pornography is the most readily accessible contraband that exists. Without spending a dime, a perpetrator, with just a few keystrokes, can summon some of the most disturbing images ever created. Every computer and smartphone, in the wrong hands, can become a portal to the dark criminal underworld of child pornography.
Here’s the frightening thing: When it comes to criminal liability, it doesn’t have to be your hands; it only has to be your device. If your computer or phone contains images of child pornography, even if you didn’t put it there – even if you didn’t know about it – you could go to jail.
Parents can be held liable for the actions of their children, wives for the actions of their husbands, employers for the actions of their employees.
Password protect your devices and restrict whom you grant access because allowing the wrong person to use your devices can open you to criminal review. While a detailed forensic analysis might exonerate you, it will only come after fees paid to a good criminal defense attorney and a good forensic examiner.
This is the nightmare Jared Fogle faces now.
It is far too early to know what involvement Jared had, or what long term consequences he may face as a result of this child pornography investigation. I truly hope that he was not directly involved in this criminal activity.
In the wake of the revelations about Bill Cosby, I’m tired of being disappointed in people who are meant to be role models. That said, guilty or not, Fogle’s reputation has been tarnished with his proximity to this crime.
For the rest of us, it’s a sobering reminder that the technology we rely on – our computers and smartphones – can be used to commit terrible crimes, and managing access to that technology is a grave responsibility.
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