All In The Family: Child porn as leverage? Think again

We thank Minnesota Lawyer for the opportunity to join a great community of authors, reporters and thought leaders. As a married couple practicing family law together, our dinner-table conversations can be rather interesting some nights. We’re going to try to bring some of that dialogue to you.

Our firm was founded in 2003 on the premise that we would work hard, treat people respectfully, and strike a balance. After 12 years, we continue to enjoy working with one another. We’ll be sharing the family law beat with Alan Eidsness and Jaime Driggs, and are enthusiastic about the opportunity.

As family law attorneys, we often find ourselves in the crosshairs of a criminal issue. It’s important to proceed with caution in protecting not only the client, but also ourselves. Much as we rely on accountants to crunch numbers and appraisers to value real estate, it may make sense to turn to a reputable criminal defense attorney in certain situations.

Here’s a recent scenario we encountered:

Husband and Wife had been married for over 25 years, with three grown children. During the marriage, a 16-year-old female exchange student stayed with the family. Six months after the student’s departure, Husband inadvertently emailed Wife (our client) photographs of his hands resting on the exposed breasts of the teen. Wife held onto the images, uncertain if they would be useful as part of a forthcoming divorce.

For many attorneys, the gut-level reaction involves a thought of using the foregoing situation to the advantage of Wife in the divorce. Certainly, Husband faces criminal exposure on multiple fronts. But, Wife, and her counsel, face potential exposure as well — whether criminally, ethically, or in family court. Much depends on how the relevant images are used.

Let’s start with Husband’s exposure. Minn. Stat. sec. 609.345, Subd. 1(e) suggests that an act of criminal sexual misconduct in the fourth degree has occurred. Beyond the criminal sexual misconduct charge, Husband faces exposure for the creation (Minn. Stat. sec. 617.246, Subd. 2), possession (Minn. Stat. sec. 617.247, Subd. 4) and distribution (Minn. Stat. sec. 617.247, Subd. 3) of child pornography.

More typically, it is an issue of Husband viewing and storing child pornography on his computer — not the production of it. We’ve encountered that scenario a number of times in the last few years. Wife learns of the content, takes the computer, and reports the information to the family law attorney.

Understand that because Wife is in possession of Husband’s illegal materials, or has maintained a copy for future reference, Wife is in possession of child pornography — in violation of Minn. Stat. sec. 617.247, Subd. 4. As a serious felony, a conviction for this type of offense involves a lengthy prison sentence and a large fine.

Suppose Wife gives you, her lawyer, a copy of the relevant images. Wife faces exposure for another serious felony, in disseminating child pornography in violation of Minn. Stat. sec. 617.247, Subd. 4.

Maybe Wife isn’t interested in going to the authorities. Does she face exposure for aiding an offender, in violation of Minn. Stat. sec. 609.495, Subd. 1? What is her duty to report? Or perhaps she informs you that she is going to destroy the photos. The destruction of evidence in a criminal case is a crime in and of itself.

Are you really in a position to advise Wife?

Let’s ignore the obvious criminal aspects of all of this for a moment, and suppose that Wife is receiving her advice from a qualified defense attorney. Wife, holding the photos, wishes to use them as leverage as part of negotiation in the divorce. She wants you to explain to Husband that unless he meets her demands, she’s “going to the authorities.”

Wife is likely to find herself right back at defense counsel’s office, facing exposure for criminal coercion. Minn. Stat. sec. 609.27, Subd. 1 provides that one who makes “a threat to make or cause to be made a criminal charge” is guilty of a misdemeanor.

In terms of the family court file, the enforceability of the settlement agreement may be called into question at some point in the future. If Husband was, indeed, coerced into signing an agreement favorable to Wife, the agreement likely won’t stick.

What about your own exposure?

As attorneys, we are not immune from charges stemming from the possession of child pornography — even if for a client. The same is true of criminal coercion.

So, do we tell the client to destroy the photos? If we do so, aren’t we encouraging Wife to commit a crime? Do the Minnesota Rules of Professional Conduct impose an obligation to report the existence of the photos pursuant to Rule 1.6? Is advice on criminal matters within our scope of representation in a divorce? As a family law practitioner, are we competent to make such a recommendation? What would your malpractice carrier have to say about enabling a client to enter into an unenforceable marital termination agreement?

Here are some best practices in dealing with child pornography in a divorce case:

First, explain to the client the complex web of legal and ethical issues surrounding you, and the client.

Second, do not view, or take possession of, a copy of the relevant images.

Third, do not threaten the other spouse with exposing the relevant images as part of negotiation. Advise your client not to do so either. Keep in mind, however, that exposure may certainly occur in family court. It is the “threat” to expose that is the cause for concern.

Fourth, do not advise your client to destroy the relevant images.

Finally, refer your client to a reputable criminal defense attorney. They will know how to proceed, and you can maintain focus on the dissolution. After all, that’s what you were hired to do in the first place.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.