2. The Nineties
The legislature, in 1995, made another dramactic step toward the fight against child pornography by criminalizing the possession of child sexually abusive material.33The new subsection states: “[a] person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than [four] years.”34 This amendment came after the United States Supreme Court held that criminalizing the possession of child pornography did not violate an individual’s Constitutional rights.35
Many members of congress argued that the statute was too broad, and thus infringed upon an individual’s First Amendment Rights to Freedom of Speech and Privacy.36The Michigan Court of Appeals recently decided that § 750.145c was clear and unambiguous; therefore, it was constitutional based upon the United States Supreme Court holdings in Stanley v. Georgia. 37
The Michigan Supreme Court recently determined the scope of § 750.145c(4);38 it explained that “possession” is more than simple physical control over an item, which incorporates both actual and constructive possession.39 The Court explained that the term “possess” or “possession” is based upon whether an individual had the ability to exercise a degree of dominion or control over the material, which will ultimately be determined by a jury.40
A crime occurs when a defendant maintains power and an intent to exercise control or dominion over the item—including the use of a third-party to bring about that control.41 Therefore, “possession” occurs even if the individual does not physically have the item in his or her hands or on his or her premises.42 The Court held that a defendant possesses child sexually abusive material when his computer contains temporary Internet files, revealing that he actually viewed that particular material while on his personal computer.43
3. The Twenty-First Century
In 2002, the legislature expanded the definition of child sexually abusive material to include the following provisions:
(a) “Appears to include a child” means that the depiction appears to include, or conveys the impression that it includes a person who is less than 18 years of age, and the depiction meets either the following conditions:
(i) It was created using a depiction of any part of an actual person under the age of 18 . . .
(C) The depiction depicts or describes a listed sexual act in a patently offensive way . . .
(m) “Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or pintable medium containing such a photograph, picture, film slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording . . . .44