Defending Child Pornography Charges
This article is intended to provide information about child pornography, the criminal charges that can be brought, and details of the different punishments and potential defenses. It has also been designed to give an overview for readers who are interested in the subject. It is not intended as a substitute for qualified legal counsel. It is not legal advice.
Child pornography is defined as any visual depiction of sexually explicit conduct involving children under the age of 18. Both federal and state laws make it illegal to possess, distribute, manufacture, or sell materials that exploit minors, and the laws relating to child pornography have become progressively more severe in recent years.
Sexually explicit material is defined by the FBI to include any photograph, movie, videotape, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct. They also note that computer and electronic communication has become the techniques of choice that is used by pedophiles to share illegal photographic images of minors and to lure children into illicit sexual relationships.
The Internet has made it easier for offenders to obtain the materials and share their interest with others who endorse this type of sexual preference. There is no free speech or First Amendment protection for child pornography. In other words pornographic pictures of children are not constitutionally protected speech. Pornographic pictures are criminal evidence of the sexual exploitation of children.
People who are charged with child pornography crimes are usually caught by the use of undercover sting operations in which law enforcement poses as someone interested in child pornography, or as a minor willing to be lured by the offender. Internet service providers are required to report suspected child pornography sites or users. Tips from anonymous sources to tip lines are another source for law enforcement. Just because someone deletes emails or pictures from their computer does not mean that they disappear. A good computer tech can track down and restore such documents.
Penalties vary from state to state and can be quite severe. On the state level penalties range from five years in state prison for possession of child pornography for a first time offender to a minimum of fifteen years for distribution. Subsequent convictions will dramatically increase the sentence length as will sentence enhancements and strike laws; up to and including life imprisonment. The federal government often becomes involved because of the tendency of the crime to cross state lines. Federal sentences range from five to fifteen years for a first offense, fifteen to forty years for a second offense and then thirty five years to life imprisonment for additional offenses. All convicted offenders must register for life as a sex offender.
Defending a charge of possession, distribution or manufacturing child pornography is extremely difficult but not impossible. This is important because the use of the internet makes it easier to become unintentionally involved in child pornography. Many people download prohibited images without knowing what they contain and are then charged even though they had no intention of becoming involved with child pornography. It is easy to misinterpret a person’s age or intentions when chatting and browsing the web.
There are several potential defenses that could lead to an acquittal or not guilty verdict. All approaches involve what is known as an affirmative defense. An affirmative defense shifts the burden of proof from the prosecution to the defendant (affirmative defenses are most notable in the “insanity” defense). If you are convicted, you will be required to register as a sex offender. The sex offender database can be legally accessed by anyone except for convicted sex offenders.
The second defense, is that the defendant possessed less than three visual depictions and promptly and in good faith without keeping or allowing anyone else, other than a law enforcement agency to access any visual depiction and took reasonable steps to destroy each visual depiction or reported the matter to a law enforcement agency and allowed that agency access to each such visual depiction. Finally, if the defendant can show that the pictures were only seemingly child pornography; for example an eighteen year old dressed up as a child, but that no minors were actually involved then there was no actual crime committed it can be a child pornography defense (assuming no other obscenity laws were violated – see the case of Max Harcore AKA Paul Little for a good example of this issue being handled in a courtroom).