The Colorado Supreme Court has clarified that no matter how many pornographic images an individual possesses, sexual exploitation of a child merits a single charge, which prosecutors had derogatorily deemed a “volume discount on child pornography.”
Following the decision, multiple state legislators agreed that the guidelines for prosecuting the crime should spark a conversation given the court's interpretation.
"What does justice look like for child pornography, be it one image or 10 images or 1,000 images?" asked Sen. Rhonda Fields, D-Aurora. "All I have to say is it all has the same damage."
At issue was whether prosecutors may charge a defendant per image of a child or, in the case of Joshua Christian Bott, group images together in batches of at least 20 to pursue the longer sentence for possession of more than 20 items. El Paso County prosecutors charged Bott with 12 counts of possessing more than 20 items, covering nearly 300 images in total.
Bott appealed his conviction, arguing he should have only received a single charge for possessing more than 20 images. The Colorado Court of Appeals agreed with him and reversed 11 of his 12 convictions. The three-judge panel decided Bott’s multiple convictions violated the constitutional protection against double jeopardy for imposing more than one punishment for a single act.
During oral argument before the Supreme Court, William Kozeliski, representing the attorney general’s office, rejected that interpretation of the law, claiming that the legislature “did not intend a volume discount on child pornography.”
The General Assembly may authorize more than conviction and sentence for a single offense. However, Colorado law defines as sexual exploitation of a child the possession of “any sexually exploitative material,” meaning at least one item. The crime becomes a higher-level felony upon possession of more than 20 items.
Without explicit authorization to the contrary, the General Assembly intended the possession of more than 20 items to be a single act, regardless of the number of images, the justices decided.
“Because the legislature has itself determined that the possession of qualifying items numbering greater than twenty, without limitation, amounts to the commission of a single felony, separate convictions and punishment for the simultaneous possession of qualifying items exceeding twenty violates constitutional protections against being punished twice for the same offense,” wrote Chief Justice Nathan B. Coats in the court’s opinion.
At oral argument, Mark Evans, the attorney for Bott, dismissed the prosecution’s concern that eliminating the ability to charge based on volume would remove a deterrent to child pornography.
“It punishes crime on a graduated basis with a recognition that at some point there is an upper limit to the amount of punishment that society is willing to impose for any particular act,” Evans said.
In the 2020 legislative session, Fields was one of the sponsors of a bill to update the child sexual exploitation statute. The proposal would have eliminated the 20-item threshold, enhanced the sentencing range for the offense and added livestreams to the list of exploitative materials. While it passed the House of Representatives by a large margin, the bill died in a Senate committee in the brief continuation of the session after a COVID-19-induced hiatus.
Another sponsor, Rep. Terri Carver, R-Colorado Springs, said the sentencing issue was one of the questions the bill was intended to address.
"That certainly was one point that we wanted to clarify in our legislation. It made no sense to set the number of images at 20 and to say that it was one charge of a [class 4 felony] if you've got over 20, regardless of whether it was 300 images or 1,000 or 10,000," she said. Carver indicated she would seek to reintroduce the measure with her co-sponsor, Rep. Dylan Roberts, D-Avon.
Roberts said that prosecutors expressed frustration to him about their ability to bring charges in larger-quantity cases. The U.S. Department of Justice also reports that encryption techniques and anonymous networks are tools to help offenders share media while evading detection.
"The Supreme Court with this decision sounds like it may have necessitated a conversation by the legislature as to how we would like child pornography violations to be enforced," he acknowledged.
Brian Hardouin, deputy district attorney and Special Victims Unit prosecutor in Larimer and Jackson counties, agreed that a modernization of the statute was necessary, and said prosecutors would work on "a fix to this issue and many others in the upcoming legislative session."
"The sexual assault on the child itself is an evil and barbaric crime," added Carver. "But when it's captured in images and video and then is on the Internet, where it resides forever, the harm is multiplied."
The case is People v. Bott.