Possession and distribution of child pornography is a sex crime that is punishable under both state and federal laws. This crime typically occurs over the Internet or by downloading files from the Internet that contain illegal images. Since files may be mislabeled, or individuals may be directed to Internet sites that they did not intend to visit, claims of possession of child pornography may be incorrectly made against innocent individuals. For this reason, it is important to understand the elements of child pornography crimes and defenses.
Child pornography is considered to be any depiction of a minor or an individual who appears to be a minor who is engaged in sexual or sexually related conduct. This includes pictures, videos, and computer-generated content. Even altering an image or video so that it appears to be a minor can be considered child pornography. One important exception to the category of illegal child pornography is artistic renderings or depictions that have serious literary, artistic, political, or scientific value. For instance, an anatomy book explaining the anatomy of a child would be exempt from a child pornography categorization. Meeting this exemption is difficult, and individuals should generally assume that sexual depictions of minors are illegal.
To be charged with a crime related to child pornography, an individual must knowingly possess, distribute, or receive child pornography. Thus, the crime requires a level of knowledge and intent on the part of the defendant. Accidentally stumbling upon child pornography is not enough to be convicted of a crime. However, since Internet investigators may simply be tracking what computers access child pornography websites or download pornographic materials, it is often difficult for them to ascertain who is intentionally accessing child pornography and when a mistake has occurred. When an individual downloads hundred of images or repeatedly accesses an illegal website, the intent may be obvious. In more isolated circumstances, however, it can be difficult to determine whether the defendant has actually committed a crime.
Perhaps the most significant defense to child pornography charges is that the defendant did not know that what he or she was downloading or accessing was child pornography, and the possession or receipt of the material was accidental. Since possession of adult pornography is legal, individuals may sometimes unwittingly access child pornography material without meaning to do so, or they may be downloading a movie or TV show from a file-sharing website and mistakenly receive something illegal. In these circumstances, the best defense is that the elements of the crime have not been met because the necessary state of mind for criminal activity was not present.
Additionally, defendants charged with child pornography may argue that, although the material was on their computers, they did not download it. For instance, when a computer has multiple users, such as in a work setting, illegal material may be downloaded by one party and then incorrectly attributed to another.
Defendants may also raise procedural challenges to the charges brought against them. As with any criminal investigation, police must have probable cause to search an individual’s computer or home for illegal materials. If a search was conducted without probable cause and without a warrant, the items obtained during the search may be inadmissible during a criminal trial. Thus, any criminal defense to child pornography charges should carefully examine how the investigation leading to charges was conducted.
Child pornography charges can be prosecuted in both federal and state court and carry hefty criminal punishments. First-time offenses can result in 15-20 years in prison plus extended time in supervised sex offender release programs. Being charged with possession of child pornography will also typically require a defendant to be registered in a sex offender database.
