The Fifth Amendment? What possible crime could Jim DeRogatis have been concealing when he repeatedly—15 times in all—answered questions put to him in court last week by invoking his constitutional protection against self-incrimination?
But Judge Vincent Gaughan had already ruled that DeRogatis didn’t qualify for these other protections, and the state appellate court had refused to intervene. So that left only the Fifth to protect DeRogatis from a contempt of court citation if he refused to answer the innocuous-sounding questions Kelly’s attorneys wanted to put to him. The Fifth, which guarantees that no person can be “compelled in any criminal case to be a witness against himself,” is an amendment appreciated far more by attorneys than by average citizens, who associate it with professional criminals dancing away from their crimes. And when it comes to the Fifth, most journalists are average citizens.
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By February 2002 DeRogatis had already been writing about R. Kelly’s checkered private life for more than a year. That’s when he received a tape that allegedly showed the R & B star having sex with, and urinating on, a girl who appeared to be about 13 years old. DeRogatis turned the tape over to the police a few hours later, and it became the basis of Kelly’s eventual prosecution on child pornography charges. Courtroom spectators sympathetic to DeRogatis for reluctantly taking the Fifth nevertheless might have wondered: a witness against himself to what? What had he done that might be criminal?
In one, a Virginia man who told the FBI and U.S. Customs Service that he wanted to turn over child porn he’d been receiving was arrested and prosecuted for possession. Years later his conviction was reversed on a technicality—the government hadn’t shown that the porn contained images of actual children.
And even if DeRogatis didn’t keep a copy of the tape, Dunn went on, “now he knows what is on the tape and now he knows when he talks to sources what they are talking about on the tape, and while I doubt very much that it would—that would create—well, I don’t know. I can’t speak to it …
“Technically,” she went on, “according to federal statutes, just visiting a kiddie-porn site makes you a lawbreaker, because regardless of why you went there, the images end up in your hard drive. You ‘possess’ child porn, which is a serious crime. You can notify the authorities. You can clean up your cookies and your cache. Still, you broke the law. The feds might excuse you, or they could arrest you. It’s entirely up to them.”
