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Possession of Child Pornography- the Curious Case of Jared Fogle "the Subway guy"

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A person is guilty of possession of child pornography for the mere knowing control of the item in Pennsylvania.

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By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Defense Lawyer

As recently reported on July 8, 2015 by Mark O'Mara reporting for CNN- Jared Fogle, famed pitchman for the Subway restaurant chain, has some problems. On Tuesday, law enforcement investigators confiscated electronics from Fogle's property in Zionsville, Indiana, while helicopters hovered overhead.

The seizure was very likely part of an investigation into the case of Russell Taylor, who had been charged two months ago with breaking federal child pornography laws. At the time of his May 6 arrest, Taylor served as the executive director of The Jared Foundation, Fogle's outreach program.

Fogel is not charged with anything, and federal authorities say he is not under investigation. But if any of the seized devices contain child pornography, and if he had access to it, Fogle may soon face charges as well.

What does it mean to Possess child pornography?

Any proper discussion of "possession" of child pornography, has to discuss first the underlying criminal statute in Pennsylvania.  That is, the "Sexual Abuse of Children," 18 Pa.C.S. Section 6312.  That statute criminlizes the following: 

  • Photographing, videotaping, depicting on computer or filming sexual acts or the simulation of such act of a child under the age of 18;
  • Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed;
  • Dissemination of photographs, videotapes, computer depictions and films;
  • Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

       The Pennsylvnia Supreme Court held that accessing and viewing child pornography over the internet constituted "control" of such pornography under §6312. A person could be convicted of sexual abuse of children for the mere knowing control of child pornography. An individual manifested knowing control of child pornography when he purposefully searched it out on the internet and intentionally viewed it on his computer. Under the statute, the Commonwealth did not have to show that a person possessed child pornography to prove a violation of § 6312 if it could prove that a defendant knowingly controlled child pornography. Section 6312(d)(1) employed the disjunctive "knowingly possessed or controlled." Therefore, it was reasonable to conclude that the General Assembly employed the terms "possession" and "control" in the disjunctive purposefully and that they were meant to have different applications.  Commonwealth v. Diodoro, 601 Pa. 6, 7, 970 A.2d 1100, 1100, 2009 Pa. LEXIS 946, *1 (Pa. 2009).

This means that just having it on your computer may not be enough.  However, there has got to be an explanation as to how it got there and if you were ever knowlingly searching it out and viewed child pornography.  For reasons outlined in another blog article on my site, there may be reasonable explanations.

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