The Colorado House Judiciary Committee on Tuesday unanimously passed a bill that would modernize legal definitions surrounding child pornography.
House Bill 1120, “Enforcement of Sexual Exploitation of a Child,” updates “certain actions described as sexual exploitation of a child to reflect access and viewing due to evolving technology,” according to the summary.
Additionally, the bill makes sexual exploitation of a child an extraordinary risk crime, which would act as a sentencing enhancer, if the child depicted in the material is younger than 12 years old, subjected to force or violence of any kind or is subject to “sexual intercourse, sexual intrusion or sadomasochism.”
It’s a dark subject usually found on the dark web — that is, encrypted content not found in mainstream search results, often requiring specific software, configurations or authorizations to access. To that end, the bill also includes language to encompass cloud-based data and live streaming, as opposed to media saved on a local device.
Ben Sollars, assistant district attorney for the Ninth Judicial District, has seen in his own office how the current definitions are outdated and can actually hinder investigations.
“The problem is many times, what we are seeing is — because of the way high-speed internet works now — that people can download [exploitative material], use it however they’re going to use it and then delete it almost immediately, without creating a permanent file on their computer,” he said. “And that’s why this bill needs to get through.”
As online platforms continue to evolve, the demand for such material has exploded.
In 2014, there were more than 1 million reports of child sexual abuse imagery, according to numbers cited by the New York Times from the National Center for Missing and Exploited Children. In 2018, that number grew to 18.4 million, and those reports included more than 45 million images flagged as child sexual abuse.
Sollars knows all too well that the Roaring Fork Valley is not insulated from the phenomenon.
“We had a case in the last six years that started out as possession [of child pornography], but he was actually creating and uploading and had children in his home in order to accomplish that task,” he recalled. “That guy’s in prison for the next 55 years. That was the most egregious case that I understood in recent memory. That is terrifying stuff.”
Most recently in Aspen, a former restaurant manager, Blair Gibsone, was sentenced to 90 days in jail as a term for the five years of supervised probation he’d been promised in a plea agreement after pleading guilty to sexual exploitation of a child, a class 3 felony.
“That was a term of the plea agreement,” Pitkin County District Judge Chris Seldin said during that sentencing hearing. “Had the court disagreed, Mr. Gibsone would be in a position to withdraw his plea.”
The presumptive range of penalties for class 3 felony sexual exploitation of a child is between four and 12 years in the state Department of Corrections.
“Sentencing is always a tricky subject,” Sollars explained. “Well, it depends on so many factors — one being the factual gravity of it, as well as maybe what the judge’s inclinations are. I think there's certainly a desire to rehabilitate those folks where you identify ... something that is motivating some of the criminal choices they make.”
In such cases, a presumptive range is limited because it only speaks to prison time and fines.
“Presumptive range is for prison; if you get probation in lieu of that, presumptive range would not [matter],” he said. “The only scenario when someone has to go to prison is if the statute says ‘shall be sentenced to the Department of Corrections’ or it’s a crime of violence.”
In that regard, the bill that the House Judiciary Committee passed this week is relevant because it would make sexual exploitation of a child a sentencing enhancer.
“Some crimes, just by virtue of their nature, they get declared extraordinary risk offenses, and what happens in those cases is the top end gets moved, based on that classification,” Sollars said, adding that the sentencing enhancer in this case would increase the maximum presumptive range from 12 to 16 years in the Department of Corrections — though even with the enhancer, it doesn’t qualify as mandatory sentencing.
The extraordinary risk designation, however, is not to be taken lightly.
“There are 10 types of offenses right now that are currently extraordinary risk," he said. "Aggravated robbery, child abuse, distribution of drugs, stalking, invasion of privacy for sexual gratification, human trafficking, second-degree assault. ... There’s only a handful of them that are declared as extraordinary risk offenses.”
In Gibsone’s case, the probation department concluded that he would be a good candidate for rehabilitation. He’s spoken several times in court about his efforts to address his alcohol abuse, which he attributed as getting “out of control” after a series of deaths in his family over the course of a few years.
“I've been blacking out for the last year,” he told Seldin Monday afternoon, and continues to maintain that he does not recall the incidents that led to his arrest, though Seldin expressed skepticism of that claim.
Aspen police first began investigating allegations that Gibsone was in possession of child pornography — and possibly acting on those fantasies — after a local woman came to the department in June, visibly upset with an account of a conversation she had with Gibsone via Facebook Messenger in which he admitted to being sexually aroused by a young girl.
Later that week, she engaged him in another conversation via Facebook under police supervision, which lasted about 6.5 hours. During that second conversation, Gibsone explicitly detailed sexual encounters he’d had with a young girl he said he babysat — encounters which, it turned out, were sordid fantasies.
He later told police he had never done any babysitting.
Still, he sent images between texts during that conversation, including nude photographs of children, and a girl sitting in an Aspen restaurant. Ultimately, police confiscated a smartphone, laptop, computer tablet and flash drives — and more than 20 pornographic images of children were found on the smartphone alone.
But most investigations into child sexual exploitation don’t begin with a witness coming into a police department with a tip and agreeing to cooperate in an investigation.
“We get cyber tips from ... private entities, like Dropbox or some of these larger companies, and places like the National Center for Missing and Exploited Children. They might give us tips to say somebody with such and such handle is downloading child porn here and would give us some investigative leads that we could follow up on, and it would be better to do that from a more local perspective.”
As it stands, however, resources are limited and local law enforcement doesn’t always have the bandwidth or the technological expertise to properly pursue those leads. In some ways, this bill would help address that need by creating a state fund specifically to provide resources to “law enforcement agencies that demonstrate a lack of technical or expert resources,” according to the bill’s language. The money would come from a proposed surcharge added to sexual exploitation of a child convictions.
“I think it is becoming increasingly common that you would see a surcharge with a felony conviction,” Sollars said.
The committee’s approval is only one step in an arduous legislative process.
“Funding is always an issue when it comes to investigations. I don’t know if that’s going to make its way through the legislature, but certainly that’s something I’d be interested to see,” Sollars said.