‚ÄúKutzner led dual lives. On one hand, he was a respected middle school teacher who led a responsible, crime-free life and, undoubtedly was a positive influence in the lives of many students. [‚Ä¶] But in his secret life, he intentionally sought out sexually exploitive material involving young children for purposes of sexual gratification.‚ÄĚ
– Government Sentencing Memorandum, U.S.A. v. Steven Kutzner
(c) Nonrequired Element of Offense. ‚ÄĒ It is not a required element of any offense under this section that the minor depicted actually exist.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† -Title 18 U.S.C. 1466A
In 2010, Steven Kutzner was working as a science teacher at Lake Hazel Middle School in Boise, Idaho. A year later, Kutzner‚Äôs in prison, where he is sentenced to remain for the next 15 months. That‚Äôs the temporary part. For the rest of his life he will be a sexual criminal in the eyes of his community. He will never start over. He will not work or volunteer with minors of any age, nor will he ‚Äúreside or loiter within 300 feet of schoolyards, parks, playgrounds, arcades or other places primarily used by children under the age of 18.‚ÄĚ Kutzner has joined the ranks of his fellow citizens Christopher Handley and Dwight Worley, all three punished for possessing visual depictions of fictional crimes against fictional characters.
Kutzner himself was prosecuted for the possession of 70 digital images, alternately described as ‚Äúanimated‚ÄĚ and ‚Äúcartoon‚ÄĚ images in the court documents, which depict various sex acts between minors, adults and animals. The images specifically described in the plea agreement all involve characters from the Simpsons animated television show.
Kutzner was prosecuted under Title 18 U.S.C. 1466A, specifically for possession of ‚Äúobscene visual representations of the sexual abuse of children.‚ÄĚ This statute can be applied to ‚ÄúAny person who [...] knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that – A) depicts a minor engaging in sexually explicit conduct; and B) is obscene.‚ÄĚ The category of ‚ÄúObscene visual representations of the sexual abuse of children‚ÄĚ is legally separate from ‚Äúchild pornography,‚ÄĚ as the former involves no actual minors in its production, and the latter can only refer to works that were produced with the aid or involvement of actual minors. The plea agreement that Kutzner and prosecutors entered into restricted the charge to a narrow range of images and ensured that Kutzner would only be prosecuted for possessing ‚ÄĒ not receiving ‚ÄĒ ‚Äúobscene visual representations of the sexual abuse of children.‚ÄĚ By pleading guilty to the lesser offense, Kutzner avoided the five-year minimum mandatory sentence tied to the greater charge.
Kutzner’s counsel, D.C. Carr, told TCJ that he and prosecutor Jim Peters discussed the implications of the statute itself in the course of the plea agreement. ‚ÄúWe talked about the first amendment implications at length,‚ÄĚ said Carr.¬† ‚ÄúPainfully at length. This statute puts the government in places it shouldn‚Äôt be. Unfortunately, in this case, they had the leverage.‚ÄĚ
Both the Department of Homeland Security and Immigrations and Custom Enforcement were involved in the investigation, led to Kutzner by the German Federal Police, who reported that his IP address was involved in sharing child pornography on the ‚ÄúeDonkey2000‚ÄĚ network. Almost a year later DHS and ICE agents contacted Kutzner at his home, where he allowed them to search his computer. Investigators found more than 8,000 images described in the plea agreement as ‚ÄúChild Erotica,‚ÄĚ or, ‚Äúnon nude or semi nude photographs and videos of children in sexually suggestive poses that are not themselves images of child pornography, but still fuel the sexual fantasies of pedophiles and others who have developed a sexual interest in minors.‚ÄĚ After agreeing to the plea deal, Kutzner admitted during his court-mandated psycho-sexual evaluation to viewing ‚Äúchild pornography ‚Ä¶ for approximately eight years.‚ÄĚ Although the additional images and admissions were discussed in the sentencing memorandum, they were not directly related to the statute that Kutzner pleaded guilty to violating.
Carr told TCJ that the complicated circumstances gave them a limited set of defensive options. ‚ÄúIf this was the only charge, I would have taken this all the way. And this statute needs to be taken all the way.‚ÄĚ
When asked if he was pleased with the outcome of the case, Peters replied, ‚ÄúI‚Äôve been doing this for 33 years, so I‚Äôm long past the personalization stage. I thought the sentence was fair for the circumstances. It was one of the lower sentences we‚Äôve seen: three months under the lower section of the sentencing guidelines.‚ÄĚ Peters stated that Judge Lodge credited Kutzner verbally for having ‚Äúimmediately taken responsibility‚ÄĚ and resigned from his teaching position. ‚ÄúIt was the right thing to do,‚ÄĚ Peters said. Peters told me that in past cases involving a teacher, the teachers in question had refused to resign, thus continuing to draw a salary for the duration of the investigation, and that in contrast to this, his office and the judge both appreciated Kutzner’s speedy cooperation.
However, Kutzner’s counsel was less than satisfied with the outcome of the case: ‚ÄúJim Peters told me yesterday that this was the least amount of time ever for that statute. And I told him, ‚ÄėIs that supposed to make me feel better?‚Äô A day like yesterday [the sentencing] really hurts. It makes me older.‚ÄĚ
The most significant similarities with the two most recent cases, those of Kutzner and Christopher Handley, are the ways in which prosecutors used the minimum mandatory penalties required by one offense (receipt or distribution of ‚Äúobscene visual representations of the sexual abuse of children‚ÄĚ) to obtain a plea for another offense (possession of ‚Äúobscene visual representations of child sexual abuse‚ÄĚ). In Handley‚Äôs case, the images in question were approximately 150 images from a collection of thousands of comics and videos, significantly different from Kutzner‚Äôs, in which there existed evidence of interest in and possible distribution of actual child pornography. However, in both cases the minimum mandatory sentence was used as leverage to extract a plea.
Also in both cases, and indeed all cases related to obscenity in general, the ruling itself did not actually make the items involved illegal. Such hard distinctions ‚ÄĒ an item being declared obscene by all parties as part of a plea deal, or even a jury trial that results in an obscenity conviction ‚ÄĒ does not de facto outlaw that item. Take the case of Texas vs. Jesus Castillo. In 2000 Castillo was found guilty by a Dallas, Texas jury for obscenity, i.e. selling an undercover police officer a copy of the second volume of Demon Beast Invasion, clearly marked on the cover as ‚ÄúAbsolutely Not For Children.‚ÄĚ Texas residents among you are invited to order Demon Beast Invasion through Amazon.com ‚ÄĒ it‚Äôs still available.
It‚Äôs this lack of a clear line that is the most insidious aspect of legal considerations of obscenity. Handley‚Äôs counsel stated it very clearly in an interview with Wired magazine: ‚ÄúObscenity is the only law I‚Äôm aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can‚Äôt tell them.‚ÄĚ In the United States, obscenity is one of the few kinds of speech not sheltered by the First Amendment of the Constitution. An item can be found obscene if a jury deems it to meet all of the following criteria:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The first two are supposed to apply to ‚Äúcontemporary community standards,‚ÄĚ whereas the third aspect of the test can apply to the nation as a whole. When one looks at obscenity cases in practice it becomes clear that obscenity is ultimately a determination subject completely to the whim of the jury. As Handley‚Äôs counsel, Eric A. Chase, stated in an open letter published by The Comics Journal and the Anime News Network, ‚ÄúJurors are people.‚ÄĚ People are by nature judgmental, and as a group are capable of great capriciousness. Many, including Handley‚Äôs counsel, have argued that the entire Miller Test, and thus obscenity standards in general, are unconscionably vague. In law, clarity is valued to prevent a prosecutor‚Äôs discretion to be overly broad, so as not to lead to a kind of selective prosecution in which unknowing citizens could be subject to the whim of a prosecutor.
Despite the potential perils of a jury trial, Kutzner’s counsel told me that, he would have been ‚Äúvery tempted‚ÄĚ to opt for a jury trial, had the case not been complicated by the (admittedly un-prosecutable) evidence of actual child pornography. However, ‚Äúpicking those 12 citizens would have been tricky. You‚Äôre dealing with such an alienating topic.‚ÄĚ It‚Äôs possible, Carr said, that they wouldn’t have been successful. ‚ÄúMaybe it’s just arrogance,‚ÄĚ he said, reflecting after a pause that, had he taken it to trial and failed, ‚ÄúI would have been a conquistador of the useless.‚ÄĚ
Even given the erratic ways that community standards have been arrived at in the past ‚ÄĒ even if they could conceivably be rationally and fairly arrived at now ‚ÄĒ what exactly do community standards mean in the time of the Internet? When anyone can plug into the great whirl of bits, when someone can talk to a person a thousand miles away as quickly as they can reach their next-door neighbor, what should the judgment and tastes and hang-ups of one person have to do with those of another? Perhaps more importantly, when a ‚Äúcrime‚ÄĚ involves no real people, involves feelings or thoughts rather than actions, is this a crime that the government should pursue? As Carr said, ‚ÄúWhere is the victim? People like Jim Peters look at Steve and say, ‚ÄėWe caught him just in time.‚Äô Come on. A lot of the predators that I represent should be locked up. But we go from 0 to 60 in cases like this. Everything is a fetish. Everything is bad.‚ÄĚ
It‚Äôs worth remembering that no children were exploited by any of these defendants. At worst, Kutzner may be guilty of harboring pedophilic desires, although there is no evidence that he ever would have acted on those desires. Kutzner is being sent to jail not for the images he possessed, but for what those images suggest about what is in his mind.
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