People vs. Cochran: Use of Underage Models for Porn In California
The recent case of People v. Cochran, 2001 DJDAR 4829 (2001), provides a clear outline of the criminal offenses for the use of underage models in California. It offers an interesting discussion on what can only be described as a disturbing factual situation.
Mac Cochran was charged with 27 counts involving the sexual assault of his unnamed daughter, including a count of employing a minor to produce pornography for commercial purposes. Cochran came to light after the FBI traced newsgroup photographs back to him. The photographs were taken from a video in which the daughter was directed to engage in various sexual acts including displaying her vaginal area, digitally penetrating herself, and undertaking various sexual acts with the defendant father. Cochran was convicted of numerous counts of aggravated sexual assault of a child and forcible lewd conduct with a child less than 14 years of age. Cochran was also convicted of employing a minor to produce pornography for commercial purposes. This conviction was reversed on appeal and presents an interesting review of the term "commercial purposes" as far as California courts are concerned.
Section 311.4 of the California Penal Code provides that any person who knowingly promotes, employees, uses, persuades, induces or coerces a minor under the age of 18 to perform for any media form including pictures, videos, etc., which involves sexual conduct for commercial purposes is guilty of a felony and shall be imprisoned for 3, 6 or 8 years in a state prison. In short, the section is designed to punish individuals pursuing child porn for commercial gain. The interesting element of this law is the definition of "commercial purposes".
"Commercial purposes" is not strictly defined in the statute. Instead, the court held that the phrase refers to a common understanding that means, "generally associated with a profit-making enterprise." [People v. Tatman, 20 Cal. App. 4th 280 (1995).] Interestingly, the Cochran court found that merely posting photographs on a newsgroup is insufficient to establish evidence of a "commercial purpose". Specifically, the court stated:
"…we reject the concept that a commercial purpose is shown merely by a one-time posting to an Internet newsgroup. Posting photographs on an Internet newsgroup is not dissimilar from posting photographs on a cork bulletin board…there must be some other evidence, e.g., some indication that the photographs are intended for sale or are intended as advertisements for future sales."
Adult webmasters should note that in California there is a lesser penalty for posting minors on the net even if it not done for commercial purpose. In short, if you post underage models, you will go to the gray motel, aka, prison. Regardless, many legal standards unrelated to child porn that regulate the adult industry are based on the concept of commercial purpose. The Cochran case clearly establishes that merely posting to a newsgroup does not constitute evidence of a commercial purpose. So what does?
Evidence of a commercial purpose in California can include, but is not limited to:
· Testimony that the product was produced for commercial gain,
· A narrative voice on the tape highlighting the participants or acts, and
· Reproduction of the video.
In no way does this case review seek to support child porn. The Cochran case is, however, a good basis for establishing the phrase "commercial purpose". Many webmasters have asked us whether their postings to newsgroups constitute pursuing a commercial purpose. In California, the mere posting of a picture does not. If the Webmaster is placing advertisements or links to with the picture to create traffic to their site, then it is the opinion of the author that the "commercial purpose" standard has been met and that the Webmaster should act accordingly. It should be further noted that a case brought in a state other than California may employee a different standard.
J.D. Obenberger, Esq. - AdultInternetLaw.com
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