Virtual or Reality: Prosecutorial Practices in Cyber Child Pornography Ring Cases by Michal Gilad

Introduction: [1] With the rising use of the Internet over the past decade, the boundaries between our physical space and cyberspace are quickly fading. The Internet has become an integral and inseparable part of modern being, and its dominance in our lives is undeniable. Actions taken online are no longer a mere virtual fantasy, but directly relate to our “offline” everyday living. Modern criminal trends also demonstrate the strong link between the virtual and physical worlds.[2] Cyber Child Pornography Rings (CCPRs) are organized communities dedicated to the illegal depiction of minors engaged in sexually explicit acts, and utilize the Internet in one way or another to further their criminal activity. Law enforcement and prosecution agencies continuously develop new methods to eradicate this harmful phenomenon. Currently, the recognition of CCPRs as one organizational unit pursuing a common criminal scheme is inconsistent. Consequentially, prosecutors in CCPR cases treat the cyber components of the ring’s activity as separate and differentiated from their meatspace operation, and different legal doctrines are used to address each component. While prosecutors seem willing to associate cyber activity with the entire group, usually under the traditional conspiracy doctrine, meatspace criminal deeds are almost exclusively associated with individuals.[3] To better adapt to the modern reality of Internet use, criminal indictments in CCPR cases should reflect the strong ties and interrelation between deeds occurring “offline” — in meatspace — and those occurring in cyberspace. To meet this objective, two essential steps should be taken. First, a comprehensive, enterprise-oriented prosecutorial strategy, which perceives the ring as a single organization or conspiracy, should be implemented. Second, the definition and scope of the ring’s criminal responsibility should be broadened to capture the range of offences within the CCPR’s operation, from possession of child pornography to child abuse and trafficking, whether committed online or offline.[4] Under this suggested construction, criminal indictments will define the boundaries of the prosecuted CCPR to extend beyond cyber activity and include all aspects of child exploitation committed by members within the ring’s pattern of operation. Accordingly, every ring member should be held responsible for the entire criminal scheme of the group, including the overt acts committed by hisher fellow ring members in meatspace. This broader perspective more realistically reflects the organizational structures of CCPRs that link individual offences and offenders, and allows accurate contextualization of the facts and events occurring online and offline. It will enable the courts and the public to better understand the pervasiveness and severity of CCPR operations and the societal harms they cause. Most importantly, the suggested strategy will clarify and uphold the accountability and culpability of CCPR members, and afford just acknowledgement and compensation to their young victims.[5] Section II will portray the organizational structure and manner of operation of CCPRs. Section III will illustrate the close and inseparable ties between the online and offline activity of CCPRs. Section IV will define and explain the differences between individual-oriented and enterprise-oriented prosecutorial strategies. This section will also discuss the use of legal instruments, such as traditional conspiracy, the Child Exploitation Enterprise provision, and the Racketeer Influenced and Corrupt Organizations Act (RICO), to effectively construct an enterprise-oriented strategy. Section V will elaborate on existing prosecutorial practices in CCPR cases and offer possible improvements. Section VI presents the strengths of the suggested strategy, while counter arguments and potential weaknesses will be outlined in Section VII.

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