Child pornography charges are among the most serious state or federal charges that anyone can face. The federal child pornography statute, 18 U.S.C. 2252 carries a maximum punishment of up to 20 years in prison, and, in many cases, a mandatory minimum sentence of 10 years in prison. These harsh sentences are frequently applied even if the defendant has never had a criminal conviction in the past, is an upstanding community leader, and did not understand the illicit nature of the material accessed.
In addition to the life altering criminal penalties a defendant faces, there is also the publicity that even the innocent defendant must face. The charges are likely to be front page news in the local media, and the defendant will soon find that friends and even family members are avoiding him. Social media can be brutal. Although the Constitution says that everyone is innocent until proven guilty, few people really believe it. There are psychological challenges, in addition to legal challenges, for the defendant to face, and we recommend defendants consult with psychological or religious professionals to deal with the process.
What is overlooked by the community, the legal system and even most defense counsel is the fact that the defendant may be innocent. Below are some common defenses that can be used to defend against child pornography charges:
Defendant not in Possession of Child Pornography
If the material in question does not belong to the defendant, the defendant is not guilty of possession of child pornography. The “defendant not in possession” defense most often occurs when the child pornography is found on a shared computer like a work computer. It is possible that someone else may have downloaded the content. In the case of a work computer, another employee or employees may have had access to the computer and downloaded material. This may have been done either because the other individual had an interest in child pornography or was disgruntled and sought to “frame” the defendant.
The defense may also be applicable when a personal computer can be accessed by other people. At home, an angry spouse could download child pornography onto a husband’s computer to be used later in a divorce or child custody matter. A roommate may want to use another roommate’s computer just “to see what child pornography looks like”.
An experienced criminal defense attorney may be able to use a forensic expert to show that at the time the material was accessed, the defendant was not at the computer and it was therefore impossible for him to have downloaded the material. Other times, a reasonable doubt defense can be successful at trial if it can be shown that multiple people had access to the computer at the time the material was downloaded.
The “Zombie Computer” Defense
Child pornography possession almost always involves images stored on a personal computer or other electronic device (cell phone, iPad, etc.). Therefore, child pornography possession is mostly a cybercrime and it is possible that some actor could access a personal computer remotely and download child pornography without the owner of the computer even knowing it is on the computer. In fact, there are individuals who have been wrongfully convicted of possession of child pornography even though the material was placed on the computer by some third actor.
The hacking of computers and computer systems occurs daily in the United States and possibly hundreds of times every day. The most secure government and corporate systems are routinely hacked, and frequently, the hackers will be in the system for weeks or months without anyone discovering their presence. There is a continuous battle between cyber security experts and hackers, and no computer connected to the internet is ever completely secure. These vulnerabilities increase on public networks or when anti-virus software has expired.
Unfortunately, police investigators are not usually going to look for hackers. It would undermine the case, and, frequently, they lack the training and the tools to investigate even if they wanted to. An experienced criminal defense lawyer, working through computer forensic experts, however, may be able to find the tell tail signs of a hack and thwart an attempt to frame an innocent person.
It could also be that the defendant accidentally clicked on an email or a pop-up or a website and material was downloaded to a personal computer or device. Even if the defendant never looked at the material and immediately erased it, it could still be found on the computer by law enforcement officials or even computer repairpersons who find child pornography when their customers bring the computer in because it is not working. (These computer techs will almost always report the child pornography to law enforcement personnel). An experienced criminal defense attorney may be able to establish that the material in question was viewed only fleetingly and that the defendant never viewed it after the initial download.
It is also important to note that pornography itself is protected under the First Amendment to the U.S. Constitution and it is possible that a person could inadvertently access child pornography without knowing it while searching for legal pornography.
The Content is not Child Pornography
“Child pornography” has a specific definition under the statute, and not every picture of a naked child is child pornography. Baby pictures carried and displayed by parents are rarely child pornography even though the child is often partially disrobed. Virtual child pornography, that is imagines that are not images of real children are not child pornography. If the government is not able to identify a child and establish his or her age, the image is likely not child pornography. Drawing or painting made for artistic purposes are not child pornography. Images used for purposes of scientific research or education are not child pornography.
A defendant may also be able to suppress evidence, and obtain a dismissal of charges, if the material that forms the basis of the charges was illegally obtained. In many cases, the illicit images prosecutors seek to use will have been obtained pursuant to a search warrant. If the affidavit of probable cause does not establish “probable cause” the evidence may be suppressed. If law enforcement officials lie or present false information to a magistrate or judge in order to conduct a search, the evidence may be suppressed. If law enforcement officials go beyond the scope of a warrant, for example, the warrant specifies a specific computer to be seized but law enforcement officials seize other devices that contain child pornography, the evidence may be suppressed.
Entrapment is a defense that arises when law enforcement officials encourage an individual to commit a crime that the individual would not otherwise have committed. In the child pornography context, it frequently occurs during undercover “sting” operations. Law enforcement officials posing as pornographers may encourage a contact on the web to view child pornography. The language used by the undercover agent is frequently unclear, and it may not be apparent to the individual dealing with the undercover agent that child pornography is actually what is being discussed. If law enforcement convinces the target to view child pornography and the target was not otherwise “predisposed” to view, his entrapment would be a complete defense.