By Syreeta L. McNeal, CPA, JD
R. Kelly had a smash hit with “Bump N’ Grind” in the 1990’s. However, when it comes to minor children, this type of sexual addiction has limits. Illinois may regulate child pornography since such material falls outside the protection of the First Amendment of the United States Constitution.[1] The crime of child pornography is an offense against the child and causes harm to the child’s physiological, emotional and mental health, resulting from a trespass against the dignity of the child, and is particularly harmful in that the child’s actions are reduced to a recording which could haunt the child in future years, especially in light of mass distribution system for child pornography.[2] However, the state’s right to regulate child pornography is limited; therefore, the law must adequately define the prohibited conduct, the category of prohibited “sexual conduct” must be suitably limited and described, the offense must be limited to works that visually depict sexual conduct by children below the specified age, and the element of scienter (a mental state consisting in an intent to deceive, manipulate or defraud) on the part of the defendant must be a component of the offense.[3]
People of Illinois are charging R. Kelly with the crime of child pornography. Section 11-20.1 of the Illinois Statute defines the elements, defenses, and sentencing for a person charged with the crime of child pornography.[4] The media attention devoted to this case is not to the level of O. J. Simpson, but for you media junkies who are interested in paying attention to the evidence presented, than continue watching. However, I want to shed light on what a jury would have to decide after hearing all the evidence in a court of law.
Sample Illinois Pattern Jury Insturction on Child Pornography
To sustain the charge of child pornography, the State must prove the following propositions:
[1] First Proposition: That the defendant [ ( [ (filmed) (videotaped) (photographed) (depicted) (portrayed) ] by means of visual medium or reproduction) (depicted by computer) ] [ (a child he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
To sustain the charge of child pornography, the State must prove the following propositions:
[1] First Proposition: That the defendant [ ( [ (filmed) (videotaped) (photographed) (depicted) (portrayed) ] by means of visual medium or reproduction) (depicted by computer) ] [ (a child he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[2] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, [ (reproduced) (disseminated) (offered to disseminate) (exhibited) (possessed with the intent to disseminate) ] a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[3] First Proposition: That the defendant with the knowledge of the [ (subject matter) (theme) ] thereof, produced a [ (stage play)(live performance)(film)(videotape)(depiction by computer) [or other similar visual portrayal]] which included [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[4] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ][ (a child whom he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ][ (would be) (would be depicted, actually) (would be depicted, by simulation) ] in the following [ (act) (pose) (setting) ]: ;
[or]
[5] First Proposition: That the defendant was a [ (parent) (step-parent) (legal guardian) (other person having care or custody) ] of [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] and that the defendant knowingly [ (permitted) (induced) (promoted) (arranged for) ] such [ (child) (institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live performance)(film)(videotape)(photograph)(depiction by computer) [or other similar visual [ (presentation) (portrayal) (simulation) ]] of the following [ (act) (activity) ]: ;
[or]
[6] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, possessed a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[7] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ] a person to provide [ (a child under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ] would be depicted, actually or by simulation: ;
And
[a] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual intercourse with [ (a person) (an animal) ].
[or]
[b] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the sex organs of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the [ (mouth) (anus) (sex organs) ] of another [ (person) (animal) ].
[or]
[c] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the [ (mouth) (anus) (sex organs) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the sex organs of another [ (person) (animal) ].
[or]
[d] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of masturbation.
[or]
[e] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was portrayed as [ (being the object of) (otherwise engaged in) ] an act of lewd [ (fondling) (touching) (caressing) ] involving another [ (person) (animal) ].
[or]
[f] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of [ (excretion) (urination) ] within a sexual context.
[or]
[g] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was [ (portrayed) (depicted) ] as [ (bound) (fettered) (subject to sadistic abuse) (subject to masochistic abuse) (subject to sadomasochistic abuse) ] in a sexual context.
[or]
[h] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] was [ (depicted) (portrayed) ] in a [ (pose) (posture) (setting) ] involving a lewd exhibition of the [ (unclothed genitals) (pubic area) (buttocks) (a fully or partially developed breast) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] [if the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] is a female].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
[or]
[3] First Proposition: That the defendant with the knowledge of the [ (subject matter) (theme) ] thereof, produced a [ (stage play)(live performance)(film)(videotape)(depiction by computer) [or other similar visual portrayal]] which included [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[4] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ][ (a child whom he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ][ (would be) (would be depicted, actually) (would be depicted, by simulation) ] in the following [ (act) (pose) (setting) ]: ;
[or]
[5] First Proposition: That the defendant was a [ (parent) (step-parent) (legal guardian) (other person having care or custody) ] of [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] and that the defendant knowingly [ (permitted) (induced) (promoted) (arranged for) ] such [ (child) (institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live performance)(film)(videotape)(photograph)(depiction by computer) [or other similar visual [ (presentation) (portrayal) (simulation) ]] of the following [ (act) (activity) ]: ;
[or]
[6] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, possessed a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];
[or]
[7] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ] a person to provide [ (a child under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ] would be depicted, actually or by simulation: ;
And
[a] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual intercourse with [ (a person) (an animal) ].
[or]
[b] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the sex organs of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the [ (mouth) (anus) (sex organs) ] of another [ (person) (animal) ].
[or]
[c] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the [ (mouth) (anus) (sex organs) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the sex organs of another [ (person) (animal) ].
[or]
[d] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of masturbation.
[or]
[e] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was portrayed as [ (being the object of) (otherwise engaged in) ] an act of lewd [ (fondling) (touching) (caressing) ] involving another [ (person) (animal) ].
[or]
[f] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of [ (excretion) (urination) ] within a sexual context.
[or]
[g] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was [ (portrayed) (depicted) ] as [ (bound) (fettered) (subject to sadistic abuse) (subject to masochistic abuse) (subject to sadomasochistic abuse) ] in a sexual context.
[or]
[h] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] was [ (depicted) (portrayed) ] in a [ (pose) (posture) (setting) ] involving a lewd exhibition of the [ (unclothed genitals) (pubic area) (buttocks) (a fully or partially developed breast) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] [if the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] is a female].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
As the sample jury instruction shows, the prosecutor has to persuade the jury with the evidence, beyond a reasonable doubt, that the defendant did one of the seven first propositions [(1) - (7)] and one of the eight second propositions [(a)-(h)] to be guilty of child pornography. Beyond a reasonable doubt represents a very high standard and in numeric terms, this standard represents that the evidence presented in trial has to convince the jury (or judge) by more than 99% that the defendant did in fact do the crime alleged. If the jury (or judge) has any doubt regarding the credibility of the evidence presented by the federal or state prosecutor, they usually find the defendant not guilty. The rationale for this high standard in a criminal case is that our legal system feels it is far worse to convict an innocent man on suspect and unreliable evidence.
A defendant does have defenses to the Illinois statute of child pornography. If the defendant can disprove or raise reasonable doubt of each of the first and second propositions of the jury instructions, than the defendant is more likely to be found not guilty of child pornography. Also, the defendant can assert affirmative defenses which will serve the same effect. Here is an example of the Illinois pattern jury instruction for the affirmative defenses to child pornography:[6]
Sample Illinois Pattern Jury Instruction on Affirmative Defenses for Child Pornography
[1] It is a defense to a charge of child pornography that the defendant reasonably believed, under all of the circumstances, that the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] but only where, prior to the act or acts giving rise to prosecution, he [ (took some affirmative action) (made a bona fide inquiry) ] designed to ascertain whether the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] and his reliance upon the information so obtained was clearly reasonable.
[or]
[2] It is a defense to a charge of child pornography that the defendant was employed by [ (a public library) (any library operated by an institution accredited by a generally recognized accrediting agency) ] at the time the act leading to the charge of child pornography took place and such act was committed during the course of employment.
[or]
[3] The charge of child pornography shall not apply to the performance of official duties by [ (law enforcement officers)(prosecuting officers)(court personnel)(attorneys) (bona fide treatment programs conducted by licensed physicians) (bona fide treatment programs conducted by licensed psychologists) (bona fide treatment programs conducted by licensed social workers) (professional education programs conducted by licensed physicians)(professional education programs conducted by licensed psychologists)(professional education programs conducted by licensed social workers) ].
[or]
[2] It is a defense to a charge of child pornography that the defendant was employed by [ (a public library) (any library operated by an institution accredited by a generally recognized accrediting agency) ] at the time the act leading to the charge of child pornography took place and such act was committed during the course of employment.
[or]
[3] The charge of child pornography shall not apply to the performance of official duties by [ (law enforcement officers)(prosecuting officers)(court personnel)(attorneys) (bona fide treatment programs conducted by licensed physicians) (bona fide treatment programs conducted by licensed psychologists) (bona fide treatment programs conducted by licensed social workers) (professional education programs conducted by licensed physicians)(professional education programs conducted by licensed psychologists)(professional education programs conducted by licensed social workers) ].
This is what the jury will be doing with the evidence that is presented in R. Kelly’s trial. I am reserving any views of guilt or innocence as we our instructed by law to do. Everyone is presumed innocent until proven guilty by the state prosecutors in a court of law. To reach that end, now you have a preview of what a jury will use to decide whether or not R. Kelly is guilty of child pornography.
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