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A Better Partnership
February 15, 2013

COA Opinion: Statute governing possession of child sexually abusive material is not unconstitutionally vague

The defendant in People v. Loper was convicted of both possession of child sexually abusive material and use of a computer to commit a crime. He argued that the statute for possession was vague, because the statute prohibits possession or a single image of sexually abusive material and a collection of images, which could result in a variance in the number of criminal charges that could be brought. Because the vagueness challenge did not involve First Amendment freedoms, the Michigan Court of Appeals examined the challenge on the facts of the case. Offense variable (OV) 12 requires a score of 25 points for three or more contemporaneous acts of possession of child sexually abusive material. The trial court assigned a score of 25 for OV 12, because the defendant possessed 4 disks of sexually abusive material. The defendant argued that if he had been charged with more than one court, the statute would be vague by also allowing a score of 25 for OV 12. But because the defendant was only charged with one count, the statute, as applied to the facts of his case, was not unconstitutionally vague. The court also rejected the defendant's argument that the statute prohibiting the use of a computer to commit a crime protected against the same wrongful conduct as the possession statute, because the statute prohibiting possession of child sexually abusive material applied to child pornography in a variety of formats, not just computer image.

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