State v. Willey

• Court: Superior Court of Delaware
• Decided: May 28, 2024
• Docket: 0802013700
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

Sussex County Courthouse MARK H. CONNER 1 The Circle, Suite 2 JUDGE Georgetown, DE 19947

May 28, 2024

John P. Deckers, Esquire Kristina Bensley, Deputy Attorney General 800 N. King Street, Suite 303 600 S. Bay Road Wilmington, Delaware 19801 Dover, Delaware 19901 Attorney for Defendant-Petitioner Attorney for the State of Delaware Joseph D. Willey.

RE: State of Delaware v. Joseph D. Willey I.D. No. 0802013700

ORDER Date Submitted: May 13, 2024 Date Decided: May 28, 2024 Dear Counsel,

Before the Court is Defendant-Petitioner Joseph D. Willey’s (“Mr. Willey”)

petition for redesignation on the sex offender registry from Tier II to Tier I. In 2008

Mr. Willey was indicted on 30 counts of using a computer to unlawfully depict a

child engaging in a prohibited sexual act in violation of 11 Del. C. § 1109(4). He

plead guilty to four counts of that offense and the State entered a nolle prosequi on the remaining 26 charges. Under Delaware law a Tier II sex offender may petition

this Court for redesignation to Tier I if certain requirements are met.1 One such

requirement is that “the victim of the crime was not a child under 18 years of

age….”2

Mr. Willey does not contest that the children depicted in the digital files found

in his possession were under the age of 18. Instead, Mr. Willey argues that a victim

is “an actual, individual person – a natural born child under the age of 18 – against

whom a petitioner perpetrated a sexual offense” as opposed to “a visual depiction or

digital image” of such.3 While Mr. Willey admits that the children depicted in the

files discovered in his possession are victims, he denies that his possession of those

files victimized them. Therefore, under Mr. Willey’s theory the requirement of

§ 4121(e)(2)(b) “that the victim of the crime was not a child under 18 years of age”

does not apply to him or other petitioners in cases dealing with the possession of

child pornography. This definition and understanding of the term victim are at odds

with its use elsewhere in § 4121 and United States Supreme Court caselaw, therefore

Defendant’s petition is DENIED.

1 11 Del. C. § 4121(e)(2)(b). 2 Id. 3 Def.-Pet’r Pet. at 5. 2 11 Del. C. § 4121(d)(1)(f) enumerates the process by which the state may

move the sentencing court to assign a felon convicted under 11 Del. C. § 1109 to

Tier III on the sex offender registry.4 One factor to be considered by the court upon

such a motion is “if the victim of the offense had not yet reached that victim’s

sixteenth birthday at the time of the crime” (emphasis added).5 Section 4121(d)(1)(f)

refers to the children depicted in pornography as victims of the offense which Mr.

Willey was charged. This clarifies that under our statutory framework children

depicted in pornography are not only victims of the initial exploitation and

dissemination but the subsequent possession of those files as well.

A progeny of United States Supreme Court decisions culminating in Ashcroft

v. Free Speech Coal.6 support the argument that the possession of child pornography

victimizes the child depicted therein.

Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were ‘intrinsically related’ to the sexual abuse of children in two ways. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being….7 [I]n Osborne v. Ohio, the Court ruled that these same interests justified a ban on the possession of pornography produced using children.…

4 11 Del. C. § 4121(d)(1)(f). 5 Id. 6 535 U.S. 234 (2002). 7 Id. at 249, (citing New York v. Ferber, 458 U.S. 747, at 759, and n.10 (1982)). 3 The Court anchored its holding in the concern for participants, those whom it called the ‘victims of child pornography.’8

The Court is pleased that Mr. Willey has made great rehabilitative progress

since his conviction, incarceration, and release. Despite this, I cannot ignore the

statutory commands of the Delaware Code eliminating the need for further statutory

analysis. Section 4121 prohibits me from redesignating Mr. Willey from Tier II to

Tier I on the sex offender registry if the victims of his crimes were under the age of

18. For the foregoing reasons I find that the children depicted in the files possessed

by Mr. Willey are victims of his crimes and his petition for redesignation is

DENIED.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary

8 Id. at 250, (citing Osborne v. Ohio, 495 U.S. 103, 110-111 (1990)). 4