Bernie Ward, a San Francisco radio talk show host and former Catholic priest, has been indicted on federal child pornography charges. Ward, 56, is raising an interesting defense that could have an impact on researchers and journalists in future cases.
Ward was indicted on two counts of child pornography using the Internet, including sending pornographic images to others. Such cases are often easy prosecutions since such acts are treated as de facto crimes. The ony true defense is to claim that you did not possess or send the images. Ward, however, is expected to make a more novel claim: he committed the acts as a matter of research for a book.
Ward’s lawyers claim that he was working on a book on hypocrisy in America. To that end, he allegedly sent images to conservatives to show that they are moral hypocrites. What makes this a provocative defense is that it could be true in the case of an investigative reporter or academic researcher. What if such a person could show that they were motivated solely in uncovering or documenting child pornography crimes. Thus, a reporter could send such images to a member of Congress suspected of being a child pornography user or supplier. Under the current laws, there is no clear exception for such acts. The scienter or intent requirement is the intent to possess or send the images. Yet, journalists will often engage in deception and trespass to go under cover in such cases. Likewise, what about a professor who studies child pornography? Can they possess the subjects of their research? In order to research the motivations and means of such crimes, they will necessarily have to see the images.
Obviously, there is a real danger that every child pornography user will claim the status of a researcher. However, this is something that can always be challenged by prosecutors. The question is whether these laws should recognize a category of legitimate possession by non-law enforcement personnel.
None of this means that Ward is an innocent researcher. I have got a clue about his motivations. Yet, if he did clearly document this research and send the material to targeted members of the religious right, it could raise an issue — and major problem — for the media and academics.
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