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Univ. of San Diego School of Law

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Monday, December 20, 2004

Strange Defendants in Indian Porn Case

IndiaThere are two interesting defendants in a case in India where child porn was allegedly sold on India's eBay.  First, the head of eBay India was arrested and held without bail on the ground that it was his company that distributed the tapes.  I always told my students that the UPS delivery person was not criminally responsible for possession or transportation if, unbeknownst to them, a package they delivered contained drugs, guns or pornography--am I wrong?  Second, one of the participants in the activities, himself a minor, was arrested.  While it is not clear that this is a kiddy porn case rather than an ordinary porn case, it does raise the issue of whether a minor is liable for producing their own child porn.  The compelling case that kiddy porn can be criminalized, consistent with the First Amendment, rests on exploitation of and injury to the child herself or himself, and it hardly seems to protect the innocence and dignity of children to charge them as adults and send them to prison for the crime of exploiting themselves.  (Of course, whatever defense a minor might have to child porn charges would be inapplicable to others who possessed or sold child-produced materials.) UPDATE: Here's an article about a statement by the defendant. [Jack Chin] 

http://lawprofessors.typepad.com/crimprof_blog/2004/12/defendants_in_i.html

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Comments

On the other hand, Professor, the First Amendment does not apply to India, obviously. The justification used by the American legal system for criminalizing kiddie porn may be different from that of India's legal system. Do you have any information for us on this?

Posted by: | Dec 20, 2004 8:40:44 PM

I don't know anything about Indian criminal law, but I wonder on what theory any penal system would include in the coverage of a criminal statute the very individuals the statute was designed to protect. I'm not saying there might not be plausible reasons, but I'd be interested to know them. I assume in most cases of production of child pornography, the victims do things that would otherwise give rise to accomplice liability, and in many cases without circumstances constituting a duress defense (or any other defense), yet you don't see too many victims charged.

Posted by: Jack Chin | Dec 20, 2004 9:00:33 PM

Here is some information on Indian laws on information technology. As it is, the simily between the UPS delivery guy and the CEO of ebay India, is well posed.

Please note that the Indian columnist whose link I have posted is ill informed of the details of the case facts, so take that read the article with pinch of salt. However references made to specific sections of Indian IT act are informative and hence the link.


http://www.indianexpress.com/full_story.php?content_id=61351

Posted by: Nitish | Jan 16, 2005 10:09:44 AM

I agree than again I may have missed the point. I also tend to hang with friends that get me into a lot of trouble.

Posted by: TJ Quensel | Mar 28, 2005 5:40:38 PM

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