How do lawyers handle child pornography cases that come into their office, when they have to defend the alleged distributor? Behind the desk of German lawyer Benjamin C. Wenzel lies a stack of files on the floor. Most contain documents relating to offences committed by his clients. He is an example of a lawyer who specialises in defending people in whose possession child pornography material has been found.
Example
A successful acquittal 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 police effort aimed at cracking down on users of child pornography, which led to the formation of case files for 611 cases of suspected offences, 207 of which 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 possessing child pornography material in court for the past seven years.
“The Police usually raid their home at 6 in the morning, without warning, and seize devices such as computers, hard drives and USB sticks”
What is the profile of people who view child pornography material?
Benjamin C. Wenzel: You wouldn’t be able to identify them if you saw them in the street. They have no specific profile. People with paedophilic tendencies come from different social and educational backgrounds, can be of any age and do any kind of work. 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 per 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 a state of shock — the Police usually raid their home at 6 in the morning, 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 marriage is tested, they lose their jobs. Their life as they knew it ends 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 have a lawyer and, in order for the system to function, I have to set aside 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 is different from any other criminal case. However, I believe I can have a positive influence on my client. I urge all the paedophiles I represent to begin 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 and 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 reoffended.What do you do if your client refuses to undergo psychotherapy?
At least 90% of my clients undergo psychotherapy, but some 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 that happens, I still try to motivate them to begin 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 offender 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. I then have my first discussion with my client and propose 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 obliged to examine it, although usually an overview of the volume and content of the client’s files is sufficient. Here in Berlin, they do not send me the material; access is granted to me at the office of the Public Prosecutor General. There are always other people present.How does it affect you to view the material?
Child pornography is always horrific — behind every image lies a tormented child. Every offender must be aware of this. But I have to handle it professionally. Unfortunately, I see appalling things in my work all the time.Do you ever have a guilty conscience when defending 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 considered 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 greater. The sentence imposed on those arrested for the first time on child pornography charges is often suspended, depending on the quantity of images. However, this only applies in the case of possession of images — abuse itself is punished differently.Have you ever defended someone who produced child pornography?
Yes, and in such 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 that case, the strategy I told him to follow was to confess everything, so that his daughter would not have to participate in the hearing and give a deposition. That 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 over many years, so he had probably suppressed it.What kind of person was he?
Low-key, a family man.Did you advise him to undergo psychotherapy?
Things did not work that way in this case. My client was automatically remanded 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, his representation was terminated.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. I may be less naïve in life than others. I believe that, through my work, I may have developed certain senses that sound an alarm bell in my mind. I would not let my children take public transport on their own 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 encountered any case I could not take on. I would not want to take on someone who had murdered 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 in 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 Legal Practice and Child Pornography
- See also article Profile of a Child Pornography Distributor
FREQUENTLY ASKED QUESTIONS ON Lawyers and Child Pornography
1. What sentence do I face for possession of child pornography material?
Possession of child pornography material is punishable as a misdemeanour or as a felony, depending on the volume, the manner of acquisition and whether or not there has been further distribution. Simple possession without distribution is, as a rule, treated as a misdemeanour and allows for a suspension of sentence (Article 99 of the Penal Code (PK)) or commutation to a monetary penalty (Article 80 PK). By contrast, the habitual acquisition of large volumes or distribution constitutes a felony with stricter penalties. In any event, the recognition of mitigating circumstances (prior good conduct, remorse, good behaviour after the act — Article 84 PK) and the voluntary commencement of psychotherapy can substantially reduce the sentence imposed.
2. What do I do if the Police have carried out a raid and seized devices?
The first and most important step is to contact a criminal defence lawyer immediately, before giving any defence statement or deposition. The defendant has the right to silence and the right not to contribute to his own incrimination. Device passwords should not be handed over without legal advice, nor should any “explanatory” statements be made to the police officers. The lawyer files a request for access to the case file, examines the lawfulness of the search and seizure and prepares the defence statement. Any irregularities during the search (lack of a prosecutor’s order, exceeding the limits of the seizure) may lead to the nullity of evidence.
3. Can I avoid pre-trial detention until trial?
Pre-trial detention is an exceptional measure and is imposed only where strict conditions are met: serious indications of guilt for a felony, risk of flight or of committing further offences. In simple possession cases, treated as misdemeanours, pre-trial detention is not available. In felony forms, the lawyer can request the imposition of restrictive measures instead of pre-trial detention (prohibition of leaving the country, reporting at a police station, bail, prohibition of internet access). The existence of a permanent residence, family ties and the voluntary commencement of psychotherapy significantly strengthen the application to avoid pre-trial detention.
4. Is there a possibility of acquittal or that no prosecution will be brought?
Yes, there are several lines of defence depending on the facts. Often files are found on electronic devices without having been searched for or opened by the holder, or have been introduced via malicious software, peer-to-peer applications or shared devices. The absence of intent — that is, the conscious will to possess — leads to acquittal, as is also evidenced by an acquittal judgment of the Mixed Jury Court issued for a client of our firm. In addition, unlawfully obtained evidence, defects in the chain of custody or inadequate technical IP identification may lead to acquittal under the principle of in dubio pro reo.
5. How long do criminal proceedings in such a case last?
The timeframe depends on the classification of the act and the courts’ caseload. The pre-trial stage (preliminary investigation, main investigation, referral) can last from six months to two years, particularly where extensive technical expert examination of electronic devices is required. Misdemeanours are tried before the Three-Member Court of Misdemeanours, while felonies are tried before the Mixed Jury Court, with a hearing date typically requiring a further one to two years. With the lodging of an appeal, the final ruling may be delayed by a total of three to five years. Consistency of the defence at all stages is crucial.
6. What is the role of the lawyer in such cases?
The lawyer represents the defendant at all stages, from the first defence statement to the final ruling. The lawyer’s duty is to safeguard the lawfulness of the case file, challenge weak or unlawful evidence, make use of technical expert opinion and put forward mitigating circumstances. At the same time, the lawyer guides the client as to the appropriate procedural stance — confession, silence, voluntary entry into a psychotherapy programme — based on the specific facts. Our firm has extensive experience in cybercrime cases and has obtained acquittal judgments in similar cases, always safeguarding every defendant’s constitutional right to a substantive and effective defence.