How do lawyers handle child pornography cases that come to their office, where they must defend the distributor? On the floor behind the desk of German lawyer Benjamin C. Wenzel lies a stack of files. Most contain documents relating to offences committed by his clients. He is an example of a lawyer specialising in defending people in whose possession child pornography material has been found.
Example
A successful acquittal judgment obtained by our firm in a child pornography case before the Athens Mixed Jury Court: Acquittal Judgment Child Pornography Mixed Jury Court
Explanatory video describing the offence of child pornography
According to estimates by the United Nations and the FBI, every second, 750,000 people view child pornography material on the Internet. Many of these offenders go unnoticed and unpunished. This was demonstrated last summer by «Operation Daylight», a pan-European policing effort aimed at cracking down on users of child pornography, which led to the formation of case files in 611 cases of suspected offences, of which 207 were investigated. However, only 75 arrests were made.
Lawyer Benjamin C. Wenzel is 39 years old and lives in southern Berlin. He has been defending clients accused of possession of child pornography material in court for the past seven years.
«The Police usually raid their homes at 6 a.m., without warning, and seize devices such as computers, hard drives and USB sticks»
What is the profile of the people who view child pornography material?
Benjamin C. Wenzel: You wouldn’t be able to identify them if you saw them on the street. They have no specific profile. People with paedophilic tendencies come from different social and educational backgrounds, may be of any age and may have any occupation. These tendencies exist and do not simply disappear. They have to learn to live with them.
How often do you represent such people?
In general, I have four to five clients a month. I receive requests from all over Germany.
When you meet them, how do you treat them?
They approach me for help and I have the typical client-lawyer relationship with them. Many are still in shock — the Police usually raid their homes at 6 a.m., without warning, and seize devices such as computers, hard drives and USB sticks. They are arrested and usually their family and neighbours witness the raid.
«I have clients who say they are addicted to illegally downloading files from the Internet»
Do you feel sorry for them?
I clearly see that my clients are subjected to enormous stress. Criminal proceedings are stressful, their marriages are tested, they lose their jobs. Their lives as they knew them end and they are stigmatised as paedophiles forever. I try to provide them with support as my clients, but on a personal level I keep my distance — as I do with all my clients. I keep the relationship on a professional level.How do you do that? How do you keep your distance?
As a lawyer, your job is to safeguard the legal system. It is not a job like any other. Every defendant has the right to a lawyer, and for the system to work, I must separate my personal views and interests. If I were not able to do that, I would be in the wrong profession.Why do you defend paedophiles?
I do not represent only paedophiles — they account for perhaps 5 to 10% of my caseload as a lawyer. Of course, child pornography differs from any other criminal case. However, I believe I can have a positive impact on my client. I urge all the paedophiles I represent to start psychotherapy, so that they learn to manage their impulses. I think this is one of the most important steps and they usually follow my advice. I do not suggest it to them in order to reduce their sentence — psychotherapy aims to prevent my client from committing further offences, from harming other people and children. That is why I see my work as a valuable contribution to society. So far, none of my clients has committed a new offence.What do you do if your client refuses to undergo psychotherapy?
At least 90% of my clients undergo psychotherapy, but some of them refuse — because they do not see themselves as paedophiles, for example. I have clients who say they are addicted to illegally downloading files from the Internet. Even when this happens, I still try to motivate them to start psychotherapy. But you cannot force someone to do something they do not want to do.What is the procedure you follow when you take on a client?
The alleged perpetrator contacts me after the Police raid on his home. I contact the Police and the prosecutors and request access to the case files. After assessing the incriminating evidence, I form a picture of what the sentence may be. Then I have the first conversation with my client and recommend psychotherapy.«One of my clients had taken pictures and videos of his own daughter»
When you say you have to assess the incriminating evidence, does that mean you also examine the child pornography material?
I am required to examine it, although usually a review of the volume and content of the client’s files is sufficient. Here in Berlin, they do not send me the material; I am granted access to it at the office of the General Prosecutor. There are always other people present.How does viewing the material affect you?
Child pornography is always horrific — behind every image lies a tortured child. Every offender must know this. But I have to handle it professionally. Unfortunately, I see appalling things constantly in my work.Do you ever have a guilty conscience when you defend paedophiles?
No, it is my job as a lawyer. If a surgeon could not face the sight of blood, it would mean they had made the wrong career choice. I always keep my distance from the client; we have no relationship on a personal level.Paedophilia is regarded as one of the worst things in society.
Yes, but the law does not treat the possession and distribution of child pornography material as the most serious offence. Murder, manslaughter, armed robbery — the sentences for these offences are much higher. The sentence imposed on those arrested for the first time on charges of child pornography is often suspended in nature, depending on the quantity of images. However, this applies only in the case of possession of images — the abuse itself is punished differently.Have you ever defended someone who produced child pornography?
Yes, and in those cases the charges also include child abuse or abuse of a minor.What happened?
One of my clients had taken pictures and videos of his own daughter. For this case, the strategy I told him to follow was to confess everything, so that his daughter would not have to take part in the hearing and give testimony. This was in everyone’s interest. My client regretted what he had done.So he had a sense that what he had done was wrong?
Yes, I think he knew what he had done was wrong. However, the abuse had been continuous for many years, so he had probably suppressed it.What kind of person was he?
Low-key, a family man.Did you recommend that he undergo psychotherapy?
Things did not work that way in this case. My client was automatically held in pre-trial detention and was sentenced to seven years’ imprisonment. He is still in prison. I do not know whether he is undergoing psychotherapy there — once the sentence was imposed, my representation came to an end.Do these cases really not weigh on you?
Of course, you carry them with you forever.Do you want to become a father?
Yes.Are you not worried about what may happen to your children?
Everyone has worries and fears. Perhaps I am less naïve in life than others. I believe that through my work I may have developed certain senses that ring alarm bells in my mind. I would not let my children get on public transport alone at night — I would go and pick them up myself.Is there any offence you could not defend?
That is a difficult question and it really depends on the case. So far, I have not come across a case I was unable to take on. I would not want to take on someone who killed a child, but I have not been asked to do so until now.If at some point you could no longer bear being a criminal lawyer, what would you do?
Honestly, I think I would become an estate agent. It is very different, but I am passionate about it.Part of the article was published on VICE.COM
- See also article Child Pornography
- See also article Reclassification of Child Pornography from Felony to Misdemeanour
- See also article Minor Distributors of Child Pornography
- See also article Profile of a Child Pornography Distributor
- See also article Defamation via Facebook
- See also article Online Fraud
FREQUENTLY ASKED QUESTIONS ON LAWYERS AND CHILD PORNOGRAPHY
1. What sentence am I facing for possession of child pornography material?
The offence of possession of child pornography material is provided for in Article 348A of the Penal Code (PK) and, depending on the circumstances, is treated either as a misdemeanour or as a felony. In cases of first arrest, a small volume of files and the absence of distribution, there are serious possibilities for limiting the sentence through suspension (Article 99 PK), conversion into a monetary penalty or community service. Where mitigating circumstances are recognised (Article 84 PK), such as a previously honest life, sincere remorse and good post-offence conduct, the sentence may be substantially reduced. The actual risk depends on the volume, the content and whether or not there is evidence of distribution.
2. What do I do if the Police have raided my home?
Raids by the Cybercrime Prosecution Unit are usually carried out in the early morning hours, with the seizure of computers, hard drives, mobile phones and USB sticks. From the very first moment, the defendant has the right to remain silent and the right to the presence of a lawyer. It is not advisable to give extensive explanations or passwords without legal guidance, as any statement is recorded and used in the case file. Communication with a lawyer before giving the defence statement before the investigating judge is critical, in order to develop a strategy based on the actual content of the case file and to assess the lawfulness of the seizure and the digital examination.
3. Is there any chance I can avoid conviction?
Yes, in many cases. Defects are often identified in the digital examination procedure, in the chain of custody of the evidence, in the lawfulness of the seizure or in the identification of the user on the basis of the IP address. Many times the file has been «downloaded» automatically through peer-to-peer applications without conscious intent of acquisition, an element that may overturn intent. Our firm has obtained an acquittal judgment in a child pornography case before the Athens Mixed Jury Court. The principle of in dubio pro reo applies where the identity of the user and conscious possession are not proven beyond reasonable doubt.
4. Will I be held in pre-trial detention until the trial?
Pre-trial detention is an exceptional measure and is imposed only when the strict conditions of the Code of Criminal Procedure (KPD) are met. In cases of simple possession without evidence of distribution or production of material, the defendant is usually released subject to restrictive measures, such as a ban on leaving the country, periodic appearance at a police station or bail. The picture differs when the charges include child abuse or active distribution within networks. The lawyer presents the stability of residence, family situation, professional position and the voluntary commencement of psychotherapeutic monitoring as factors that exclude the risk of further offences.
5. How long does such criminal proceedings usually last?
From the raid and seizure to referral to trial, the pre-trial stage usually lasts from one to two years, as specialised digital examination of the seized items by the Cybercrime Prosecution Directorate is required. Subsequently, a hearing date is set before the competent court (Three-Member Misdemeanour Court for the misdemeanour form, Mixed Jury Court for the felony form). In the event of an appeal, the procedure may take a total of three to four years. This time is used strategically for psychotherapeutic monitoring and the establishment of mitigating circumstances, factors that decisively influence the final sentence.
6. What is the role of the lawyer in these cases?
The lawyer represents the defendant at all stages, from the preliminary investigation through to the hearing and legal remedies. The lawyer thoroughly studies the digital examination report, identifies weaknesses in user identification and in the lawfulness of the seizure, examines whether intent existed or whether the download was automatic, and shapes the line of defence. In parallel, the lawyer guides the client as to the commencement of psychotherapy, a factor that is taken seriously into account by the court. Our firm has handled dozens of child pornography cases with significant results, including an acquittal judgment from the Athens Mixed Jury Court, and always maintains the professional relationship at the level of technical legal defence.