In a classic Simpsons episode, Homer Simpson, as a young person, is excluded from a club of his peers – the club is called the “No Homers Club.” Homer complains, noting that there was a Homer inside the clubhouse.
He’s told – “It says no Homers. We’re allowed to have one.” (Incidentally, the “No Homers Club” is now the name of many Simpsons fan clubs).
Club rules tend, I think, to be silly. The Seventh Circuit’s recent opinion in United States v. Loughry however, meant the difference in whether a child pornography conviction stands can depend on the rules of a private “club.”
Robert Loughry was accused of being an administrator of an online club that had very rigid rules. The club, called the “Cache,” existed to allow users access to a particular kind of child pornography. Other kinds were explicitly prohibited.
As the Seventh Circuit explained it,
Only “lascivious exhibition” pornography, which included the exhibition of girls’ genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited.
Mr. Loughry was accused of distribution of child pornography, advertising child pornography, and related conspiracy counts. He was not accused of possession of child pornography.
The government introduced evidence of the images found at the Cache. As the Seventh Circuit explained,
The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into “18 and over nude,” “13-18 nude,” and “under 13 nude” categories. The Cache’s rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.
During the trial, the government introduced evidence of Mr. Loughry exercising the kind of role in the Cache that one would expect an administrator to exercise – he promoted members, he kicked them out, and he created new member accounts.
The last government witness, though, introduced evidence of significant hard-core child pornography found on Mr. Loughry’s computer. It was the kind of child pornography that would not have been allowed in the Cache. It’s described in the opinion, if you want to know more.
Mr. Loughry was convicted and sentenced to 30 years in prison.
On appeal, he challenged the district court’s decision to admit the hard-core child pornography from his computer as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Again, keep in mind that Mr. Loughry was not charged with the crime of possessing the hard-core child pornography on his computer.
The court of appeals took the district court to task for not looking at the hard-core child pornography before ruling on the admissibility question. Because the trial judge didn’t look at that evidence, the court of appeals reasoned, that judge couldn’t have made an informed decision about how prejudicial it was.
As the court of appeals said it,
The challenged videos include the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence’s probative value.
Describing the kind of hard core child pornography that was shown, the court of appeals determined that it was prejudicial – and that the prejudice outweighed the value of admitting it, noting,
Such displays have a strong tendency to produce intense disgust.
The Seventh Circuit then found that the judge’s error was not harmless, and reversed and remanded the case.
Child pornography cases are hard, and it is challenging to make the kinds of distinctions that the Seventh Circuit made here. Good on them for doing this work though, even though it’s hard.