SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer Jonathan Katz. We are here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_00 0:17

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DUI defense lawyer in Northern Virginia here in Fairfax. As usual, we're here with our podcast master, Abigail Swigart. Before we go to Abby, uh we now do a disclaimer. Nothing on any of our media podcasts, website, anything is advice. The only advice you get from me, John Katz, is when you're a client or when you have uh paid me for a consultation. With that, Abby, how are you doing?

SPEAKER_01 0:47

Doing well. I missed you all last week.

SPEAKER_00 0:49

Yes, well, I'm so happy we had Rachel with us, so I might as well just uh let the public know what they'll see anyway by looking at our team page. Uh, you know, Rachel is the first uh alumnus or alum uh who stays on our uh on our team page. She was so excellent.

SPEAKER_01 1:07

I think that's appropriate.

SPEAKER_00 1:08

Last Friday was her last day with our law firm. That was uh February 23rd, due to a uh transition with her military family, Arias Simon. And uh wow, Rachel really uh just brought great great work and spirit and energy energy here. Uh as do you, but uh I'm I don't think I'm speaking only for myself that I miss her very much already. Truly. Now, what are we talking about today? This is a sobering one.

SPEAKER_01 1:36

Yes, it's a a little heavier topic. We're talking about sex crimes, prostitution, um, indecent exposure, obscenity, all that stuff.

SPEAKER_00 1:45

And and probably the least uh serious one among them, at least the way the public might see it, at least the way I see it, might be prostitution uh among consenting adults.

SPEAKER_01 1:54

Right. And some people might wonder why it's still a crime, or if you know if it's a crime in Virginia, because some places it's not.

SPEAKER_00 2:02

Okay, so why don't we start there with prostitution, prosecutions? Right. Why is it still a crime? So uh the I forget his name, I think it was Phil Harvey who started the Adam and Eve Corporation that would sell uh both uh sex aids as well as adult videos and other products. He was talking to the Cato Institute a few years ago and I caught him, and maybe he didn't coin the phrase, but it makes a lot of sense. He said America has a bipolar relationship with sex. So when we're talking about consensual sexual activity among adults, on the one hand, we had the sexual revolution in the 1970s, and that and yet you have the puritanical strain. And then, of course, you have you do have uh feminists, for instance, say, uh, look, you know, how can you have uh completely consensual relationships between a sex worker uh as well as a customer, because if the sex worker is doing this because they don't feel they have any other options economically, how is a consensual uh yes, I understand that, but my view is if it is consensual activity among uh adults, let it happen, as long as I don't have to see that as I'm driving down the street. I mean that's uh that that's what the indecent exposure laws deal with. Well, let's let's talk let's talk about indecent exposure. So so there's a um uh do we tell people where to reach us? Let's uh interrupt with that.

SPEAKER_01 3:30

Yeah, you can give us a call at 703-383-1100. Our texting number is 571-406-7268, or you can reach us at beattheprosecution.com.

SPEAKER_00 3:44

Okay. Well, you know, let's talk about things we don't want to see. Well, you know, I may not even want to be driving down the street and seeing uh certain people wearing uh the skimpy bathing suits that we see on on the uh beach. I'm talking about males and females, uh uh, but that's allowed. I mean there's nothing there's nothing unlawful about a person wearing on the street what they're allowed to wear on the beach, you know this, right?

SPEAKER_01 4:08

Yes, yeah.

SPEAKER_00 4:09

But you know the sexist aspect of the indecent exposure law uh in Virginia and most of the country, uh some states with their uh court system and legislation do otherwise. Why is it that uh that it's criminalized for a woman uh to bear her breasts, uh, but for a man who would need a man's ear or a bro, as we saw in Seinfeld, allowed to let that all hang out? That is sexist, in my view, and uh people can argue till the cows come home that uh that men's breasts are not eroticized the the way the women's breasts are. Does that mean the women would have to uh cover up their ankles and legs just because there are men who who get aroused by women's uh ankles and legs?

SPEAKER_01 4:53

Yeah, I think it's a very you know heated topic of debate people have about the sexist nature of what men can show and what women can show and you know different body parts and things like that.

SPEAKER_00 5:05

But at the same time, if you are accused of indecent exposure, you will you will really appreciate speaking with me because the Virginia indecent exposure law is not very clear on what it uh bans other than uh obscene uh display of the person, and it's hard to say uh that it it is obscene for a woman to uh bear her breasts, especially since even in Virginia law, I'm pretty sure I'll have to double check there's protections for women to uh breastfeed in in public and uh talk about you know getting us into the 21st century on that one. Well, in that regard, um obscenity. Uh so now let's go into adult sexual activity that is still uh criminalized. Well, the only uh other adult sexual activ uh the only real adult sexual activity that's criminalized, that's consensual, that's not commercial, is obscenity. This would be um depictions by word, by by image, whether we're drawn, by photo, by film, uh, that's obscene. And the U.S. Supreme Court doesn't help us much in telling us what obscenity is because this is really the undefinable. So what the U.S. Supreme Court says in the case of Miller versus California, 413, U.S. 15, a 1973 case. Nixon was still president, 413, U.S. 15. I was 10 years old at the time. Obscenity is that uh a depiction or description of sexual or excretory function, that's pretty disgusting, excretory function, uh, where there's a three-pronged test. Does the average person applying contemporary community standards find the work taken as a whole appealing to the prurient interest? Number two, does the work depicted uh describe in a patently offensive way sexual conduct specifically defined by the applicable state law? And finally, does the work taken as a whole lack serious literary, artistic, political, or scientific value? Well, during the Reagan administration, Ed Meese, when he was attorney general, actually helped put people into prison uh for depictions and videos that uh you can pretty much well you used to be able to get them easily at adult video stores when they existed, but they're easy to buy online now. Uh there would be prosecutions in the 1980s under the obscenity laws, uh even depicting what uh the missionary position by married couples. Wow. Uh so you know what a waste of resources. Now, the the most commonly uh prosecuted uh sexual material is child pornography. Uh the adult uh the adult um depicted uh sexual industry as a multi-billion dollar industry already. Are are you are you aware of the work that I've done for the adult entertainment industry?

SPEAKER_01 8:10

Yeah, we've talked about it briefly, but I think it'd be good for listeners to know how you got into this that line of work.

SPEAKER_00 8:15

Do we talk about that on on air or just off air?

SPEAKER_01 8:18

Oh, just off-air, I think.

SPEAKER_00 8:20

So one day uh my former law partner, Jay Marks, a great lawyer and immigration lawyer uh up the road, and I were uh talking a year after our uh law firm was open, it was 1999, we're talking about how to get some more clients. And I said, well, you know, it'd be great to get some more criminal defense clients through uh the adult entertainment industry, uh prostitution, escorts, obscenity. Um and I also like the idea of being doing First Amendment defense, protecting people's uh right to free expression, strip clubs, for instance, now 99% of my law practices uh criminal defense, and he had a great idea. He said, Why don't you call so-and-so, who uh had a cover article about him on the Washington City paper, who provides uh women uh for uh bachelor parties to do things that uh go on at bachelor parties sometimes. And I called him up and he answered the phone, and in short order, within a year I became the founding president of the uh first affiliate or chapter of the Free Speech Coalition. That was in the uh DC uh Virginia, Maryland area. Uh and the Free Speech Coalition focuses on uh First Amendment rights, and it's a trade association uh for such companies as ones that provide uh adult video. And um I helped keep open adult video stores when they existed, and they pretty much got uh ran out of business by being able to download this material by high high-speed internet or just or just order it uh through mail order. And uh also I uh worked with another lawyer as local counsel uh to convince uh a local county to strike a a new regulation they had. They created a distance requirement between uh customers and and the dancers, which would have prevented lap dancing because lap dancing can't be done from a distance. And and I I actually believe that there should be First Amendment protection for lap dancing because dancing is expressive activity, and lap dancing just is a more a more crude format of it. I mean, in fact, the U.S. Supreme Court has said that uh before an adult video store can be closed down, uh before uh pasties have to be required on uh on strippers, uh there there have to be uh uh relevant negative secondary effects studies uh shown uh that there's more crime, um uh lower, lowered property values, for instance, for having this type of activity in this neighborhood rather than putting the people in the hinterlands. Well, I'm digressing, but not. I mean, this is this is how I started started doing this kind of work. And and and you know, I like to tell my clients who are charged in pornography, not in prostitution stings, and anything else involved involving sexual activity or anything else, I say, I think the the uh criminal defense lawyer, the priests and the confessional, and this and the psychologists are among the the three people who hear some of the darkest secrets and darkest corners uh of from our clients. And it's not just sexual-related cases. I mean, I I I've had uh uh captains of industry in my office doing silly things like drinking too much and getting behind the wheel, where these people are making millions of dollars a year and they could easily get even a fancy Uber, Uber triple X or whatever they call it, the the SUV, and they get behind the wheel anyway. So now let's talk about child pornography and soliciting uh children for for sex, including online. This is rampant, and this is in the fall with stings, Abigail. Uh do you know uh what often motivates people uh to seek out child pornography and uh and sexual activity with underage people?

SPEAKER_01 12:10

Um I know some individuals have prior trauma and of their own that can contribute to them seeking out that. Um maybe just a curious interest that they've always had and that you know, like an itch that they needed to scratch, that they felt that they needed to scratch to look at those kind of images.

SPEAKER_00 12:31

Well said, um it can even it does discuss even me uh who represents people for such case and works to get them off and works to get the least penalties for those who are found uh guilty to be uh seeking out child pornography as well as children uh for sex with when they're an adult. Um but uh there there's nothing criminal about having it as a fantasy. The problem is acting on it. Uh so it is a crime uh to possess child pornography, and child pornography is defined as uh images of actual people under 18. Um in some instances if it's computer altered, for instance, putting a uh uh a child's uh uh superimposing a child's uh face over an adult's body, that could be a problem too. But it's uh uh under uh under 18 engaged in uh penetrative sexual activity or showing their uh their exposed uh their exposed genitals. It can go beyond that. I mean even crotch shots, uh a camera focusing on on a bikini, on an eight-year-old wearing a bikini, focusing on a crotch could be prosecuted successfully for obscenity. So the idea here is err on the safe side. Just don't do it. Um and what happens is uh are you aware, Abby, that when people are online often they're lulled into this uh false sense of uh of anonymity.

SPEAKER_01 14:13

Right. And they don't think that you know, if it was a cop they're talking to, that they'll ever find them or you know, they won't know who they're talking to on the other end, so they won't be caught.

SPEAKER_00 14:23

There's nothing anonymous about being online. No. Every time we use a cell phone, every time we use a computer hooked up to a modem, there is a unique IP address there. So it's not only a matter of right when we're talking to the cops who are engaged in stings, but but the cops and other law enforc other law enforcement people are constantly on uh on the lookout for who's accessing through torrents and through uh uh sharing pro uh programs and and and sharing websites to to seek out and obtain child pornography. So let's say that the cops uh shut down um shut down a child pornography website. Well, not exactly uh shut down, but take over a child pornography website or or a or a child pornography uh chat room, they're gonna be actively looking for what are the IP addresses that are on there. The cops will then obtain a search warrant to find out who owns that uh that account, and then they're gonna go ahead and uh serve a search warrant on your home. Now, before we get to that search warrant part, I did say that child pornography is disgusting. It is. I can't say, though, that it's any more disgusting to have uh sexual activity depicted of uh a woman who's 17 years old, 364 days, than an 18-year-old, but you know, let's be reasonable about it. Uh Abigail, I think I've talked to you about this uh before. My understanding is that the so-called legitimate uh adult film companies and adult video stores probably lost millions of dollars when they had to take all the Tracy Lords videos off their uh off their shelves. Tracy Lords was a very popular adult entertainment actress uh back in the 1980s or so, and she lied that she was at least 18 when she started acting when she was at least uh when she was at least 17, and that was child pornography.

SPEAKER_01 16:18

Right, and they might not the adult film industry might not have known at the time, her true age.

SPEAKER_00 16:25

Exactly. So, I mean, even the so-called more legitimate uh adult entertainment producing companies, uh like you know, no matter how sexist uh uh or whatever else they are, you know, like Hustler, like uh Penthouse, uh like for the videos uh Vivid and Wicked, they can still be caught up with people who are under eight under 18. But if you are going to uh seek out adult entertainment in the form of uh magazines, sorry, in the in the form of pictures, the in the form of videos, it is much smarter not to do it online because you don't know if what you think is legitimate online is actually some other company masquerading as hustler, masquerading as vivid or wicked. It is much smarter to have the hard copy items, to have the magazines by what you know to be legitimate companies, to have the DVDs by what you know to be legitimate companies. As far as prostitution, to backtrack on that, there are, to my knowledge, only two or three counties in the nation where prostitution is legal in the United States, that is, in Nevada. And um, you know, commonly uh clients of mine who have been arrested for soliciting uh prostitutes, these are married men, often with uh children, and often they're saying to me, Um, I sought out a prostitute because I'm not getting much affection from my wife. Uh my wife doesn't want to engage in sexual activity at all. And I say to them, Well, look, I'm not gonna give you moral advice, but legally, you just can't do this. You can't afford this. And so many of the people who come to me, uh, these are people with security clearances, IT professionals. Uh I say you just can't do this. I said you're gonna work out this out, whatever you're gonna do to work it out legally. You're gonna work it out with your uh spouse or not. Uh and if you have an affair or whatever, I'm not acting, I'm not advocating having an affair, uh, but you're gonna do whatever it is legal for that. Um now on the subject of child pornography. So have we talked uh earlier today, Abby, off offline about what people need to do if they're ever served a search warrant, whether it's for child pornography or anything else.

SPEAKER_01 18:45

Um yeah, we talked about it briefly, and I think that comes up like if the cops raid your house, what should you do for your raid your computers, things like that?

SPEAKER_00 18:53

The first thing to say to police who are uh uh serving a search warrant at your home is may I see the search? May I have a copy of the search warrant? And then you say, Am I free to go? Now, a lot of my clients say, Well, I didn't leave because I didn't want the uh the police to just totally turn up in the house and not see how much they were destroying it, uh, make sure that the uh police locked the door when they left. Well, it's a whole lot better, Abby, uh, to have the police leave your door unlocked once they're finished uh uh turning the place upside down and making it look like a tornado hit it after uh issuing a search warrant than to uh find out that your tongue starts wagging to them while they're there or that you start looking into certain uh closets and closed uh places uh that lead the police to look into places they wouldn't have looked into otherwise. Leave.

SPEAKER_01 19:44

Right, you don't want to help them any more than you can.

SPEAKER_00 19:47

Exactly. If the police will let you leave, leave. And just because just because the police have a uh judicially uh issued search warrant does not mean that you have any obligation to talk to them at all. I mean, we've talked on at least two or three previous episodes. This is our 11th episode of Beat the Prosecution, of your right to remain silent with the police and how dangerous it is to do otherwise. And if the police won't let you leave, ask them, may I please call my lawyer? Not everyone has a lawyer they know to call, and be careful also if you're calling a lawyer in front of the police. But if you already have a connection with the lawyer, and if the lawyer will come over there or talk to the police and try to talk to the police about letting you leave or making sure that the uh police know that you're coming over and don't try to talk to you without coming over, that's great. Now, of course, did you know, Abby, a lawyer cannot assert the Fifth Amendment right to remain silent for their client, only their client can do that.

SPEAKER_01 20:47

I didn't know that, but that's good to know for everyone listening.

SPEAKER_00 20:50

And so that's how it happened with John Malvo, who is the teenage member of the uh uh the the sniper team with John Mohammed, who John Mohammed ended up getting uh executed. His lawyers tried up and down to make sure that uh Malvo would not speak to the police uh when when they met with him. Uh but uh as much as Malvo's lawyers asserted his right to remain silent, he was just a teenager. Teenagers are more likely to wag their tongues with police than adults. Oh boy, he did he wag his tongue. Silence, silence, silence, silence, and more silence. Abby, where can people reach us?

SPEAKER_01 21:28

Yeah, if you have any questions, you can give our office a call at 703-383-1100. You can email us at info at beat the prosecution. Our texting address, our texting number is set 571-406-7268. And you can always visit our website at catsjustice.com, and we have a lot of um blog articles about these topics as well.

SPEAKER_00 21:54

Yes, don't wait too long after your uh home is raided with or without a search warrant. To contact a lawyer. I'm going to give you an example. Um, Abigail, uh, one of our federal child pornography clients, uh, his um his home was raided, and uh, some of these federal cases can take months uh for the um the digital evidence to be uh searched. And so what I did with my client here as I often do when uh it looks like there will be a lot of child pornography found, is I get them to start doing self-improvement. Uh so what do you think would be some of the key self-improvement steps here if a person might get prosecuted for child pornography?

SPEAKER_01 22:37

Right, yeah, some good at self-improvement could be you know starting counseling with someone, um, getting psychological evaluations done early, and maybe start community service and appropriate community service organizations. Um, those would probably be the top three I would suggest to start with.

SPEAKER_00 22:55

Right, and then just like how with DWI cases, I tell my clients to do several AA meetings or AA type meetings, these are 12-step self-help meetings in the uh child pornography area and obscenity area too. There's SA and SAA, Sex Anonymous and Sexholics Anonymous, and uh those are both uh very good organizations. Many of my clients have benefited from them very much. Now be careful when you are with any of these self-help groups. Uh don't say anything that could incriminate yourself because these folks will be more than happy to throw you under the bus, even if there is a promise uh not to do that. Um so back to this thing about so one of my clients whose home was rated in over 60,000, I'll say that again, over 60,000 still images and video images were found on his devices, and the way we kept him from being held pretrial in his federal prosecution, even though the federal law presumes if you have over, I think, 6,000 images, uh, that there should be no uh bond beforehand, is I showed that he was not a risk of flight or harm to himself or others because he had already been engaging for nearly a year in self-improvement and he already had an evaluation from his psych from his cheating psychologist that he was improving and that he was at a low risk to reaffend with child pornography. And so what happened there was it was no picnic. He was put on house arrest, but better house arrest than otherwise. And he was even given access to uh monitored uh monitor, he was given monitored access to the internet, which was a double-edged sword, which you know meant, of course, that it would have been very tempting for him to sort out uh child pornography, and then he could have found his butt in jail uh pending his trial date, but by his staying away from it, which he did, that helped him all the more. Let's talk about another disgusting activity, which is soliciting uh oh no, before we go to that, child pornography, computer forensics experts. So it's common when I do child pornography defense to uh to engage the services of a computer forensics expert. Uh now, even if the defendant has admitted uh to the police that they were engaged in child pornography activity, and because so many uh people interested in child pornography, it arises from them having uh been abused physically, mentally, or uh sexually as a child, therefore their wiring is totally messed up. They often have the mentality of a child, they're in the body of a sexual being. Once again, just don't act on it. Uh so what do people with the mentality of a child usually do when police are asking them questions, Abby?

SPEAKER_01 25:51

They answer the questions, they blabber.

SPEAKER_00 25:53

So even when they have blabber, the importance still of a uh uh of an expert in uh computer forensics is to help put everything in perspective to helping with at least negotiations and sentencing. So when I use the services of a forensic uh technical forensics expert, I will say, for instance, okay, well um please uh do a uh do a survey of the percentage of non-pornographic images versus pornographic images that weren't on there. And among the pornographic images, what was the percentage of child pornography uh versus uh versus adult pornography? Let's put it in perspective as best as possible because it often turns out that only 10% of my clients' activity uh of everything that was on that uh that computer had to do with uh pornography at all, child pornography at all. Okay, now we're gonna talk about soliciting sexual activity from minors. Okay, here's a way to go help you go cold turkey for any of you out there who are interested in child pornography or uh sexual activity with a um with a minor. We have these uh these police officers and other law enforcement folks trolling the internet, uh pretending to be uh a girl named Candy, for instance, who's 13 years old and and is a virgin but wants to uh wants to know some things about uh not remaining a virgin. And I want you to have this image seared in your mind. It might be some hairy, overweight cop with uh a wife beater t-shirt that just has his bare stomach just spilling out there. And let's add unbathed as well, although we know in reality cops like to bathe. But I want to sear that in there if you're not to have any interest whatsoever in taking that bait. Not just for that, even if there's some adult who's uh who's saying, hey, you know, uh I'll give you a date for $200. That could also be that same hairy, fat, ugly uh cop. Whatever's gonna sear that in your mind and not to uh uh do that. And then child pornography, you might say, well, you know, how's that hairy, how's that picture of the 13-year-old really a hairy, fat uh cop? Well, the picture may not be the hairy, fat, ugly cop, but the hairy, fat, ugly cop might actually be running that uh that commandeered website. Uh unfortunately, there are a lot of people who do seek to solicit sexual activity from minors, and often it is that uh that adult male cop who's pretending to be candy who's a 13-year-old girl. And uh here's here's to scare you for any of this stuff. We're dealing with all sorts of mandatory minimum and harsh sentencing. If you're convicted of this, a lot of this type of activity, and with uh soliciting a uh an underage uh a person under 15 in Virginia for sexual activity, and if it's done over the computer, that's a five-year mandatory minimum in prison, Abby. Did you know that?

SPEAKER_01 28:57

Yeah, that's a very hefty um consequence.

SPEAKER_00 29:01

And 10 years if it's a federal conviction. Yeah, that's mandatory minimum.

SPEAKER_01 29:07

There's no wiggling out of that.

SPEAKER_00 29:09

Nothing suspended.

SPEAKER_01 29:10

Yeah, that's a long time.

SPEAKER_00 29:11

And when we were talking about uh when we were talking about the child pornography, under federal law, okay, you want to scare the crap, let's scare the crap out of every everybody. To have even one picture, not even a video, to receive even one picture of child pornography. It can be as simple as just a picture of a girl on a beach totally unclothed, a 17-year-old, five years mandatory minimum prison, Abby.

SPEAKER_01 29:36

Yeah, I don't if that doesn't you know scare you, I don't know what would.

SPEAKER_00 29:41

So even though the Fed the federal prosecutors try to deal with uh larger things, uh a lot, a lot of this um show today is meant to scare the crap out of you so you don't need my services. Abby, where do people uh reach us again?

SPEAKER_01 29:57

703-383-1100 is our office number. Our texting number is 571-406-7268. Um, we also you can send us an email at info at beatheprosecution.com or visit our website, catjustice.com.

SPEAKER_00 30:15

Um Is there anything else you think that the audience might want to know about? I think we really covered a lot.

SPEAKER_01 30:21

Yeah, I think it's a you know hefty topic to discuss, but I think there's people out there that listen might benefit listening to this and hearing some advice and caution and scare them. Um but I think we covered a lot.

SPEAKER_00 30:38

I will add uh our law firm is a judgment-free zone to the point where uh parents, relatives, and close friends of a lot of our clients perhaps get really irritated me that I just will not berate my client for their alleged or actual activity. The closest I'll come is to be able to at least give them the talk about how dangerous this activity is and how they've got to turn a new leaf to not uh mess things up for themselves all the more. So that at least when I'm talking to the prosecutor, at least when I'm talking to the judge, I'm able to say I have had firm discussion with my client about this, to the point where, uh Abby, do you know that uh for a recent case where our client got below sentencing guidelines for being convicted of uh importing um won't say importing, because the importation was part of it, but for possessing with the intent to distribute over 35 pounds of marijuana, the judge pointed out that he did favorably take it, that uh my client and I had had many discussions about how, okay, you made the investment uh into this about uh trying to make profit off the the marijuana, didn't work. Now you just go into a different line of work. This is a judgment-free zone, and that's very important because I want my clients to speak open to me and honestly, and I'm very happy that my staff is very good at being judgment-free as well. Now, if you're gonna talk about those tough uh those tough subjects, though, bring them up uh with me. My staff's just here to tell them what you're charged with and set yourself up for appointments with me and and just get the ball rolling. But the uh the more nitty-gritty uh subjects will come up with me because with my staff I keep everything G-rated for them. Thanks everyone for listening. Anything else, Abby?

SPEAKER_01 32:16

And just as a reminder, anything on this podcast or our blogs is not legal advice from John Katz. And John Katz will not give out legal advice unless you're a hired client or paid for consultation.

SPEAKER_00 32:29

Well said. This has been John Katz, a criminal defense lawyer and DWI defense lawyer in Fairfax, Northern Virginia. Same time, same channel as when you'll hear from us again. Thank you so much.

SPEAKER_01 32:41

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beatheprosecution dot com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.