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Court Holds State Does Not Need To Produce Abused Child Or Expert Witness Testimony To Establish That Children In Child Pornography Images Were Real
MADISON - The Wisconsin Court of Appeals today affirmed the Washington County conviction of Jason Van Buren on charges of possession of child pornography, sexual assault of a child, and exposing a child to harmful material. Adopting arguments made by the Wisconsin Department of Justice, the Court of Appeals held that the State is not required in child pornography prosecutions to produce the abused child or to provide expert witness testimony to establish that a child depicted in a pornographic photograph is a real child rather than a computer-generated image.
Attorney General J.B. Van Hollen, whose office handled the appeal, praised the Court's decision. "The Court's opinion recognizes that juries are fully capable of distinguishing between real and virtual images of children," Van Hollen said. "The decision means that child pornography prosecutions in Wisconsin will not require the State to produce the abused child for trial and force him or her to recount the exploitation that was digitally recorded. It also means that child pornography prosecutions will not be burdened by the unnecessary expense of hiring an expert witness in cases in which there is no reason to believe that the abused children are anything but real."
During an investigation by West Bend police into reports that Van Buren had an inappropriate relationship with an eleven year old girl, Van Buren admitted that he had ten sexual encounters with the girl, at least four of which included sexual intercourse. A search of Van Buren's computer determined that it contained over 51,000 images of child pornography. At trial, Van Buren recanted his confession to having sexually assaulted the girl.
Van Buren argued on appeal that because the United States Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition limits child pornography prosecutions to images of real children, the State was required at trial to produce evidence beyond the pictures themselves that the children depicted in the pictures were real children rather than computer-generated images. The Court of Appeals rejected that argument, noting that courts in other jurisdictions have held almost without exception that expert testimony is not necessary to prove that the children are real. "In this case," the Court held, "the jury was handed pictures that look, for all the world, like photographs of children engaged in sexually explicit conduct." The jury was entitled, therefore, to draw the inference "that the pictures were photographs of children engaged in sexually explicit conduct."
The State of Wisconsin was represented in the Court of Appeals by Assistant Attorney General Jeffrey Kassel. The Washington County District Attorney's office prosecuted the case at the trial level, with Holly L. Bunch representing the State.
A copy of the Court of Appeals decision may be accessed at http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=31348.