Colorado Court of Appeals: Downloading child porn does not constitute “sexual exploitation of a child”
People v. Mantos, 07CA2107 (Colo. App., Aug. 6, 2009)
The Colorado Court of Appeals found that that “downloading and saving sexually exploitative material in a share-capable computer file” does not “constitute the felony offense of sexual exploitation of a child.” Sexual exploitation of a child is defined, in relevant part, by 18-6-403(3)(b), C.R.S. 2008 as follows:
A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:
(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material
John Louis Mantos was convicted on “two felony counts of sexual exploitation of a child.” Investigators had discovered numerous images and movies depicting child pornography in the “Recycle Bin” of his computer. They also discovered the file-sharing program “KAZAA Light.” To make its case, the prosecution attempted to show that the actions of downloading and saving child pornography, together with the presence of a file-sharing program on the computer (the prosecution called the images “potentially shared items)” constitutes “preparation,” arrangement, intent, and therefore exploitation within the meaning of the statute.
Disagreeing, the Court of Appeals held:
“‘[P]repares . . . any sexually exploitative material” describes the conduct of creating the sexually exploitative material. Consequently, defendant’s conduct of downloading and saving the already-existing material in a share-capable computer file is not proscribed by the term “prepares” in section 18-6-403(3)(b).
Citing the “legally inadequate theory of liability” with regard to “preparation” allowed by the judge in the jury trial and concluding that “the evidence was otherwise insufficient,” the Court of Appeals vacated the conviction.
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