Child Pornography and Exploitation
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Neighbors say the couple that lived in the $1 million home in the 11100 block of South Country Squire Road were “the sweetest on the block” who brought cakes to the new home owners that moved into the exclusive neighborhood. The 69-year-old orthopedic surgeon who lived at the residence was considered the “ideal grandfather figure.” He reportedly bought expensive gifts, including rent-free houses, for the economically deprived parents of several of his youngest child patients. Over a two-decade period he spent as much as $250,000 on these gifts.
But, according to police and Harris County Assistant District Attorney Eric Devlin, the doctor was a secret pedophile who began molesting some of his male child patients as young as four years of age and continued the molestation into the patients’ teen years. Following a two-year investigation by the Houston Metro Internet Task Force that began when a former abused patient, now an adult, came forward and reported the abuse to the police, the doctor was arrested on July 21, 2009 for sexually abusing four former patients when they were young boys.
The arresting authorities told the local media that The doctor was the “smartest, most obsessed” pedophile they had ever encountered. They pointed to two police vans of evidence, including videotapes of the sexual abuse, seized from his office and residence to support this claim. The Houston Chronicle reported that some of the evidence seized included “dozens of binders” of photos of children and news stories about “kidnapping and child brutality.”
“All the time he spent cutting out pictures of little kids, articles about rapes, murders, and brutal deaths and information that would help him ingratiate himself with his victims and any future victims,” Houston juvenile investigator J.R. Roscoe told the Chronicle, “that’s a lot of research. He was very friendly, very kind, a sweet old man. He would be the ideal grandfather, for the role he played.”
In its 2008 study “Child Pornography Images of the Abuse of Children,” the National Society for the Prevention of Cruelty to Children discussed the issue of pedophiles collecting child pornography: “The obsessive nature of the collecting and the narrative or thematic links of collections, led to the building of social communities on the Internet dedicated to extending these collections. Through these ‘virtual communities’ collectors are able to downgrade the content and abusive nature of the collections, see the children involved as objects rather than people, and their own behavior as normal: It is an expression of ‘love’ for children rather than abuse.”
It is unclear from the public record how the doctor viewed his reported massive collection of child pornography or why he maintained such an extensive, wide-ranging collection. What is clear from the public record is that prosecutor Devlin believes that the doctor paid extensively to keep it a secret. Devlin is considering criminal “conspiracy” charges against the “guardian” of one of the alleged victims in connection with a decade of sexual abuse. The doctor reportedly paid the boy through the guardian $155,000 over a ten-year period to keep the boy quiet about the abuse.
“They were paid over time, from the time they were very young until they grew up,” Devlin told the Chronicle. “One of the kids may have received $155,000 all the way through. Other kids were also paid various amounts of money.”
In addition to the state charges for which the doctor could receive a minimum of 25 years without the benefit of parole or early release to a maximum of life imprisonment, The doctor could face federal charges for possession of child pornography and sexual exploitation of children under two federal statutes, 18 U.S.C. §§ 2251, 2252.
§ 2252, the federal pornography statute, prohibits the visual depiction of a child engaged in sexually explicit conduct. Sexually explicit conduct is defined in 18 U.S.C. § 2256(2)(E) as “lascivious exhibition of the genitals or pubic area of any person” and it occurs with a child when “the child is nude or partially clothed, when the focus of the depiction is the child’s genitals or pubic area, and when the image is intended to elicit a sexual response in the viewer.” 1/
§ 2252 was amended with Subsection A(a)(6) as part of the 2006 Adam Walsh Protection and Safety Act which prohibits the “grooming” of minors for sexual exploitation. “Grooming” is a practice utilized by pedophiles to develop relationships with minors by providing them with child pornography. Law enforcement officials say this practice lowers the defenses of the child and makes it easier for pedophiles to entice the child into sexual contact.
An Alabama man, became the first person on July 15, 2009 to be sentenced under the “grooming” provisions of § 2252 which carries a penalty of 5 to 20 years. If a defendant has a prior sexual abuse of a child or a child pornography conviction, he can receive a minimum 15 year sentence to a maximum 40 years. Penton was convicted of providing child porn to two children, ages 6 and 8, and sentenced to 40 years. He received 20 years for the “grooming” conviction and 20 years for the distribution and possession of the child pornography given to the two children.
§ 2251 essentially criminalizes three types of actions: 1) a person knowingly uses or persuades a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; 2) that at the time such conduct is engaged in, the person knows the minor is under age of eighteen years of age; and 3) that the person knows or has reason to know that such visual depiction will be transported in interstate commerce. 2/
The United States Congress has experienced significant difficulty adopting legislation to effectively combat the interstate distribution of child pornography which, according to law enforcement officials, is a significant problem. The U.S. Justice Department reports that “at any one time there are an estimated to be more than one million pornographic images of children on the Internet, with 200 new images posted daily.” The law enforcement agency estimates there are 50,000 to 100,000 pedophiles involved in international organized pornography rings with one-third of them being in the United States. One pedophile in England alone had 450,000 child pornography images, according to DOJ officials.
In 1996 Congress enacted the Child Pornography Prevention Act (“Act”) in its effort to curtail interstate trafficking in child porn. The U.S. Supreme Court three years later struck down those provisions of the Act which prohibited computer-generated images depicting a child in a pornographic manner as being an infringement on the First Amendment of the U.S. Constitution. 3/ Congress in 2003 amended the Act under the title “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act (“Protect Act of 2003”) which prohibits some illustrations and computer-generated images depicting children in a pornographic manner. In a 7-2 ruling in May 2008, the U.S. Supreme Court effectively upheld the Protect Act of 2003. 4/
On July 23, 2009, the doctor posted a $400,000 bail with conditions that he wear a Child Protective Services-monitored ankle bracelet and not have contact with anyone under the age of seventeen. Criminal District Court Judge David Mendoza, however, did stipulate that the doctor could continue his medical practice while on bail awaiting trial. The doctor has practiced medicine in the United States for thirty-six years.
The doctor has been charged with serious sexual assault offenses. If convicted, it will demonstrate that he violated a sacred trust between doctor and patient. However, prosecutor Devlin, and the police, should have remained mum about the nature and volume of evidence allegedly seized from the doctor’s residence and office. The Chronicle has described the evidence in bold headlines as a “mountain of evidence,” which serves only to taint and prejudice a prospective jury pool. The State’s evidence should be presented in a courtroom, not in the local media.
1/ United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999).
2/United States v. Carroll, 105 F.3d 740 (1st Cir. 1997)
3/ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002)
4/ United States v. Williams, 128 S.Ct. 1830 (2008)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair