Friday, February 08, 2008

Just Missing The Mark

The General Assembly is attempting to clamp down on child porn distribution.

Last year, Douglas County D.A. David McDade created quite a stir by alledgedly handing out multiple copies of the Genarlow Wilson sex tape. After hints of prosecution from the Feds, McDade finally stopped his willy-nilly distribution. But the genie was out of the bottle.

That one thoughtless act led to rumored viewing parties at the Capitol and ultimately to the demise of legislation which would have freed Wilson. Fortunately, the Supreme Court, presumably without the same access to the horrible video talisman, later set aside Wilson's conviction.

Now the final act of the Wilson saga begins.

Rep. Rich Golick (R-Smyrna) and David Ralston (R-Blue Ridge) have submitted a bill which would prevent any release of evidence of sexual nature used in a criminal case. They should be applauded for this effort, but as Political Insider points out there one potentially big problem with the law.
Particularly worrisome to the Georgia Press Association is a provision that would permit judges to clear the courtroom when such evidence is presented during trial.

The good intentions of Rep. Golick and Rep. Ralston miss the point that the sin committed in the Wilson case was not the viewing of the material but the distribution of the material. It can certainly be argued the press and even the public to a degree have a legitimate interest in viewing all evidence which might lead to a criminal conviction. This does not means either should be able to possess that evidence.

Fortunately, the fixing is pretty easy.

First, throw out the ability of the judge to scurry the press out during a trial. Second, add that access to evidence of a sexual nature should be limited to those with a legitimate interest, i.e. the press, and that it can only be examined in the confines of a custodial facility such as a D.A.s office. Third, require the request for information be in writing and recorded. This final point will prevent those who only seek this type of material for prurient interest.

There's a lot of good here. Just needs to be shined up a bit.


Sara said...

That's a great idea and I'm glad someone has taken up the mantle.

I'd add one thing...a private right of action for any individual depicted in graphic evidence of a sexual assault against any public official or public employee who violates the law and distributes the evidence to individuals who do not qualify to have it under the statute.

I think if someone has the evidence of their sexual assault passed around at private parties by an unscrupulous public employee, they deserve compensation for that act. And the threat of a financial penalty in the form of a civil judgment will give small towns and counties a strong incentive to make sure they know everyone's following the rules.

Right now I'm a little uncomfortable with the notion that the DA would be the one to police his own office because he'd have the power to decide whether to prosecute someone in the DA's office for violating the law. A private right of action by the alleged victim depicted in the evidence would create an alternative enforcement mechanism and a much stronger incentive to be vigilant with evidence than presently exists in this legislation.

griftdrift said...

I could see a civil penalty provision. That would certainly be a deterrent.

But I think completely transparent record keeping of records request would eliminate most of the scofflaws.

One of the problems in the Wilson case was when asked who had got the tape McDade responded he didn't know. He didn't keep any records. A detailed list of who got the thing would have prevented a lot of this.

Sara said...

Didn't Andre get a list?

griftdrift said...

Not a complete one.

If you look at the record keeping statutes which govern most state agencies first of all don't operate any heavy machinery in the near future. But what you will discover is most are intensive right down to the minutae. Mostly I suppose because they deal with money.

Not so for freedom of information requests. That's a loophole that needs to be closed.