OLYMPIA -- House lawmakers rejected arguments that a bill restricting access to child pornography evidence would be unconstitutional when they unanimously passed the measure last weekend.
Substitute House Bill 2177 prohibits the copying of child pornography evidence during criminal cases in Washington. At each step of the bill's progress, questions have been raised on how to balance a victim's rights to protection and a defendant's constitutionally guaranteed right to a fair trial.
Part of ensuring a fair trial is guaranteeing defendants have access to the evidence against them, and Washington's court rules require prosecutors to share with defense attorneys any books, photographs, documents or other evidence that prosecutors intend to use during a trial. Defense attorneys likewise must share evidence with prosecutors.
But supports of the legislation are concerned that giving defendants access to child pornography evidence exploits child victims all over again.
The bill emerged from outrage surrounding a Tacoma case in which Weldon Marc Gilbert was accused of sexually abusing 40 boys and young men and was allowed in the course of representing himself to watch more than 28 hours of pornographic videos he is believed to have shot.
Because the videos were part of the evidence against him, he was allowed to watch them as many times as he wanted and without supervision, The Associated Press reported.
The bill aims to prevent that from happening in future cases by restricting defense attorneys and defendants representing themselves from copying child pornography used as evidence.
It also restricts defendants representing themselves from viewing the material except in the presence of a court-appointed lawyer.
The evidence would remain in the possession of the government or the court, and once a trial ends, the evidence would be sealed and destroyed at a later date.
It's a change that brings Washington in line with the federal Adam Walsh Child Protection and Safety Act of 2006, which requires federal courts and prosecutors to make evidence in child pornography cases available, but does not allow copying by the defense, according to a legislative staff report.
Rep. Sherry Appleton, D-Poulsbo, voted against the bill when it was reviewed by the House Committee on Public Safety and Emergency Preparedness, because the bill could conflict with the constitutional right to a fair trial by restricting a defendant's and defense attorney's access to evidence.
"For me, it was a question of being unfair," Appleton told the Herald.
However, Appleton ended up voting for the bill because of an amendment to restrict defense and prosecution access equally.
Defense Attorney Amy Muth, who specializes in serious felonies and sex offense cases, has spoken against this bill since its initial public hearing in January.
"When we have these emotionally charged topics, we have to be more careful to be certain that defendants' constitutional rights don't get lost in the process," Muth said.
Restrictions imposed by this bill would make defending those accused of child pornography crimes too difficult, she said. Prosecutors can easily overcome these restrictions, Muth said, because they already work closely with the state agencies that would hold the evidence.
Rep. Connie Ladenburg, D-Tacoma and prime sponsor of the bill, told the Herald she has consulted many lawyers and she is confident that the bill is fair.
Ultimately, it would be up to the courts to decide whether the law violates defendants' rights.
Minutes before the House passed the bill, Ladenburg asked lawmakers to picture children they knew and imagine if those children were sexually abused, then photographed.
"Every time a photo is copied of a child that's been abused, that child gets abused again," Ladenburg said.
Muth said she cannot speak for the victims of child pornography, but she said the act of viewing -- and not copying -- child pornography causes victims harm.
Copying is only sometimes necessary for the reviewing process, but viewing always will be, Muth said.
"We have to review these images in order to review these cases," Muth said.
Rep. Kirk Pearson, R-Monroe, addressed the House before the final vote. He was the only other representative to speak.
"This is one of the most important public safety bills we'll see this session," Pearson said.
The bill now goes to the Senate for consideration.