In Gerbert v. State, the Georgia Court of Appeals held that, in a child pornography case, the State must prove that the defendant knew that the minor depicted in the image was under the age of 18.
The defendant was convicted of aggravated sodomy and several counts of sexual exploitation of children. With respect to one of the sexual exploitation counts, he argued that the State did not prove that he knew that the person depicted in the image was a minor. In a case of first impression in Georgia, the Court held that the State must prove that the defendant knew that the pornographic image in his possession depicted a minor.
Possession of child pornography is defined in O.C.G.A. § 16-12-100(b)(1)(8), which provides that “[i]t is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”
The Court cited to the Georgia Supreme Court’s decision in Phagan v. State, 268 Ga. 272 (1997) which dealt with a different subsection of the sexual exploitation statute. Nevertheless, the Supreme Court held in Phagan that “serious constitutional doubts would be raised by a statute completely bereft of a scienter requirement as to the age of the performers depicted in the child pornography.” As a result, the Supreme Court concluded that the scienter requirement of Paragraph (b)(1) applied to all of the elements of the crime.
In a subsequent case, citing Phagan, the Supreme Court held that when a criminal statute introduces the elements of a crime with the word “knowingly,” the statute “is ordinarily construed as applying that word to each element of the offense.” Scott v. State, 295 Ga. 39 (2014).
The Court of Appeals reasoned that if the State must prove a defendant’s knowledge as to every element of the crime defined in Paragraph (b)(1), then it would follow that it must prove a defendant’s knowledge as to every element of the crime defined in Paragraph (b)(8), including that the person depicted in the image was a minor.
The Court stated that “[i]f the jury can conclude from the image that the person depicted there was a minor, the jury could also conclude that the defendant who possessed the image had the same knowledge, and vice versa.” However, the Court noted that this was not a case where the images showed children who were clearly prepubescent, but rather involved a picture of a girl who testified she was 17 at the time the photo was taken and that she did not know the defendant. Nothing about the image itself makes it clear that the girl was underage. Lastly, the Court also rejected the State’s argument that the fact that the defendant concealed the image on his computer was evidence that he knew she was underage.