Possession of Child Pornography is a Crime
Child pornography involves a visual portrayal of anyone under the age of 18 in a sexually-explicit manner. This includes images that are computer-generated. It also includes images that have been altered to depict a minor.
Under federal law, possession of child pornography is the possession of illegal contraband. Both hard copies and digital copies are considered illegal.
What Are the Consequences of Possession?
If you are charged with possession of child pornography, you may be facing up to 10 years in prison. You may also have to pay a fine. You will also be registered as a sex offender.
Being charged with possession of child pornography can have serious consequences. You should speak to an attorney if you are under investigation or have been charged.
What Are the Consequences for Distribution?
If you have also been charged with distribution, solicitation, production, or receipt of child pornography, you may sentenced to an additional 5 to 20 years. You will also be registered as a sex offender.
The Law on Possession of Child Pornography
Under 18 U.S.C.A. § 2252A (a)(5)(B), it is a federal crime to knowingly possess, or access, in any form, an image or video of child pornography.
18 U.S.C.A. § 2252A (b)(2) contains sentencing guidelines for anyone convicted of possession. Under these rules, you may face up to 10 years in prison. You may be ordered to pay a fine. A judge may even order both.
How Does the Judge Decide Your Punishment?
The severity of the punishment depends on the age of the minor. If the minor portrayed is under the age of 12, you may be sentenced to up to 20 years in prison.
The law on child pornography is broad. The federal government tries to catch as many perpetrators as it can.
“Possession” and “Accessing” is Illegal
The law does not only punish the possession of child pornography. It also punishes the act of accessing such material. In fact, law presumes “possession” from mere accessing. What this means is, if a prosecutor can prove you “accessed” the material (example: accessing an image through a third party website), the prosecutor then does not have prove you “possessed” a copy of it.
Simply “accessing” is enough to prosecute you for “possession.”
All Formats Are Prohibited
The law is also broad with regards to the material’s format. Possession of child pornography in any format, from printed to digital form, is punishable.
The Prosecutor’s Burden of Proof
To convict you, the prosecutor must prove you committed the crime “beyond a reasonable doubt.” For child pornography, he must prove you knowingly possessed or accessed such material.
This means the prosecutor would have to prove you acted intentionally and knew the material was contraband. Additionally, the prosecutor must prove the material contained at least one individual who was under the age of 18 at the time the image or video was taken.
The prosecutor will likely try to prove you also commit related crimes. Under 18 U.S.C.A. § 2252A, crimes related to possession include mailing, transporting, receiving, distributing, advertising, producing, soliciting, selling, or offering child pornography.
The Crackdown on Child Pornography
The federal government has many resources dedicated to the fight against child pornography.
- The Department of Justice (“DOJ”) investigates suspicions of possession through various departments.
- The Child Exploitation and Obscenity Section, High Technology Investigative Unit, and the Federal Bureau of Investigations (“FBI”) collaborate to find offenders.
- The DOJ conducts sting operations examining pornographic websites, the dark web, and online-sharing applications. The goal is to track down those who are receiving, sharing, or selling the material.
The DOJ employs sophisticated technology to find perpetrators. It will place tracers on files to track the IP addresses of all individuals accessing the materials.
Obtaining A Warrant To Search Your Belongings
When the FBI finds probable cause that a computer has child pornography, it will obtain a warrant to search the computer. If you are suspected of possession, chances are, you will not know you are a suspect until your home or business are raided by the authorities.
Prosecution for the possession of child pornography is taken very seriously.
If the DOJ is successful in finding evidence of possession, it will bring criminal charges against you. Known victims will be notified. This includes anyone depicted in the material as a minor, regardless of their current age. If a victim is still a minor, the parents of the minor will also be notified.
In addition to being criminally liable, you may also face lawsuits from victims.
All known victims may sue you. The victim would first file a complaint.
The victim would claim you possessed material depicting him or her in sexual activity. You will have to answer the victim’s claims by filing an answer or certain motions.
There may also be a discovery phase during which time evidence will be gathered. This will involve depositions and interrogatories in which the victim’s attorney will question you.
It is very important to have an attorney in a civil trial. If you say anything in court or during questioning that can be used against you, the civil case may negatively impact your criminal case.
The burden of proof in a civil case is much lower than it is in a criminal case. Therefore, even if you are found civilly liable, you may not be convicted. More evidence would be needed to prove criminal liability.
Knowing Your Rights
Without warning, the FBI may show up at your home or business to seize your computer and/or other materials. When they do, you must first ask to see a search warrant.
How to Review A Search Warrant?
If the government has a search warrant, you must verify the warrant contains your address and the items to be seized. If it does, you should comply with the officers. If you try to resist the seizure of your items, this may lead to further charges.
You Have the Right to Remain Silent
Remember, you have the right to remain silent. Any answers you provide might incriminate you. You have the right to tell the officers you wish to speak to an attorney first.
After any potential evidence is seized, the authorities might begin questioning you. The authorities will try to elicit information to prove their case. They will try to get you to confess to knowingly possessing or accessing child pornography.
What Does It Mean to be Put Under Investigation?
You may be under investigation. But this does not automatically mean you have been charged. It means the FBI had probable cause to suspect they would find evidence of child pornography.
Once your items has been seized, the authorities will look for images or videos depicting child pornography. They will also have to find the depiction of a minor in sexual activity. If you suspect you may be under investigation, or if your items were seized, you need to contact an attorney immediately.
Working With Your Attorney
If you are under investigation for possession of child pornography, an attorney may be able to help you avoid charges. An attorney would outline any defenses that could help you during questioning. Speaking to an attorney and having them present for any interrogations could lead to a more favorable outcome.
Entering a Plea
After the investigation is complete, the Attorney General may decide to press charges. Any time after charges are brought, you may enter into a guilty plea. However, it is strongly advised you first confer with an attorney.
If you do not enter a guilty plea after being charged, there will be a grand jury hearing. A grand jury will determine if there is enough evidence to indict you. If you are indicted, the government will continue to gather evidence and prepare for trial. At this point, your attorney should be reviewing all of the evidence and preparing your best defense.
A Good Defense Is Critical
A successful conviction of possession of child pornography has many consequences. You may serve time in prison. You may also be ordered to pay a fine. The extent of the fine or prison sentence will depend on the amount of contraband found. The judge will also consider whether or not you received or distributed child pornography.
Avoiding Sex Offender Registration
If you are convicted of possession, you will be publicly registered as a sex offender. The sex offender registry will publish your name, address, and even your picture. It will also describe the nature and severity of your offense. Registered sex offenders suffer lifelong humiliation. They also have a hard time finding employment. They may not be able to live in certain areas. They may even lose custody of a child.
The Prosecution Must Prove Intent
If you have been charged, the best defense to this crime is that you accessed contraband accidentally. For instance, you may have downloaded a cache of files you did not believe to contain child pornography. In this case, you cannot be convicted. Your access or possession of such material must be intentional. However, you can be found guilty if you decided to keep the material after finding out it contained child pornography.
Punishments for “Distribution” Are Generally More Severe Than Punishments for “Possession”
If you are found guilty of possession, the prosecutor will try to impose an even longer sentence on you. He will do this by trying to prove you did more than just possess the material.
A common tactic is to find evidence proving you also distributed this material. A good defense attorney could help prove you did not knowingly possess, distribute, or receive such material.
The Impact of Recent Cases
Pornography is considered protected speech under the First Amendment unless it is obscene. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
Child Pornography is Not Protected Speech
In New York v. Ferber, the Supreme Court declared child pornography is not protected under the First Amendment because the government has a compelling interest in protecting minors. New York v. Ferber, 458 U.S. 747, 758 (1982). As a result of this case, the government can pass laws to prevent child pornography.
Seizing Your Computer Without A Warrant
When the authorities discover child pornography on work or password-protected computer, they can still search and seize the computer, even if it contains sensitive work-information and is locked in an office at night. U.S. v. Ziegler, 456 F.3d 1138, 1143 (9th Cir. 2006). This not an unreasonable search and seizure under the Fourth Amendment. Id.
In U.S. v. Ziegler, the defendant downloaded child pornography onto a work computer, but could not successfully argue privacy because the court found there is no reasonable expectation of privacy in a work computer. Id. This means the authorities can search and seize your work computer without a warrant if they suspect it contains child pornography.
Photos On A Foreign Camera
You can also be charged with possession if you take pornographic photos of a minor in New York on a foreign-manufactured camera. See U.S. v. Corley, 679 Fed. Appx. 1, 6 (2d Cir. 2017).
The court in United States v. Corley based this rule on the fact that such conduct involved the use of materials that have “been mailed…shipped[,]or transported in, or [affect] interstate or foreign commerce.” 679 Fed.Appx. at 6.
What To Do If You Have Been Accused
The DOJ is surveilling your computer. The best way to avoid any allegations of child pornography is to screen downloaded files. This can ensure you are not downloading illegal content. Additionally, pornographic material should be obtained from a reputable dealer distributing only legal pornography.
Contact an Attorney
If you accidentally end up possessing of child pornography, it would be best to contact an attorney. If the material contains less than three images depicting a minor, you have an affirmative defense. To assert this defense you must first report the matter to law enforcement then destroy the images. However, it is advised that you first speak to an attorney before reporting.
Know Your Rights
If you are being investigated and questioned, you have the right to remain silent. You must avoid incriminating yourself. The best way to do this is by having an attorney present for questioning. The authorities will employ several tactics to get you to confess. Having an attorney will give you an edge.
You Need An Attorney
If you are under investigation for possession or if you accidentally come into possession, you must contact an attorney. An attorney who understands the intricacies of the law can prepare your best defense. It is important to have an attorney to help you negotiate with the authorities.
An attorney can also help you find out what information they have on you. If you have accidentally possessed child pornography, an attorney can even work with the authorities to report the material.
If you are under investigation, an attorney can not only protect your rights but also plan your best defense.