A Vermont man is currently being held without bail because authorities located a single “improper” image of two young boys and a young girl. The man told authorities that the image came from a (legal) nudist website.
Why so much severity in this case?
Primarily because any child pornography offense is a serious crime. Also, this is not the man’s first time he’s been found in possession of child porn.
That being said, the fact that someone accidentally stumbles upon child porn should never be sufficient to convict for this crime because too often it is difficult to assess whether the child pornography access was intentional or a simple mistake. Typically, the only evidence presented is digital tracking information of the images these days.
This is why it is so important to educate yourself about the issue, and fight back if you’ve been accused. An experienced Houston child pornography defense attorney will be able to review the specific circumstances surrounding your charges and help you start building a defense.
In the meantime, let’s take a closer look at what exactly constitutes child pornography according to federal law.
What Constitutes Child Pornography?
As outlined in the Citizen’s Guide to U.S. Federal Law on Child Pornography, no image of child pornography is protected under First Amendment and any such an image is considered illegal contraband.
But what exactly is child pornography?
According to federal law, any visual depiction of sexually explicit conduct involving a minor under 18 is classified as child pornography, including photos, videos, and any other images with parties reasonably indistinguishable from an actual minor.
Digital, computer generated, and “photo-shopped” images are all considered visual depictions. Regardless of whether the images are undeveloped or simply electronically stored data, if an image can be created from the materials, it is deemed an illegal visual depiction as well.
The exception is images which may be considered artistic renderings or depictions of significant literary, scientific, or political value. This caveat is likely the reason the Vermont man points out that the image found in his possession was taken from a nudist site.
However, meeting the artistic exemption is difficult, and individuals should generally assume that sexual depictions of minors are illegal – especially when they have a criminal history of child pornography or child sexual abuse.
Federal Consequences for Child Pornography
Any violation of federal child pornography law is a serious crime, and over the last 25 years, average sentences in child pornography convictions have increased more than 500 percent. Consequences a convicted offender face can include prison time, steep restitution to child victims, and sex offender registration -possibly for a lifetime.
Prison Time
Imprisonment varies widely according to a number of factors, including:
- How offender was involved
- Age(s) of the victim(s)
- The type of imagery depicted
- Number of images involved
However, if you are being prosecuted at a federal level, any offense can carry an extensive incarceration period. Even first-time offenders who only produce an image can land in prison for a minimum of 15 years upon conviction.
Further, convicted offenders face far more grave penalties when their criminal history include child pornography or the charged offense occurred in an aggravated situation. In these circumstances, a previously-convicted offender may face up to life imprisonment.
Restitution
Since 1994, under the Violence Against Women Act, those who were victimized as children are able to seek restitution from their abusers. In fact, this statute mandatorily imposes a duty upon the judge to order anyone convicted on child abuse-related charges to pay restitution no matter what.
Texas Sex Offender Registry
As long as a convicted offender is living in the state of Texas and is federally required to do so (usually 10 years, but can be indefinitely), he or she will maintain a registration listing on the Texas Sex Offender Registry.
It should also b recognized that any offender may be prosecuted separately under Texas child pornography laws in addition to or instead of federal law.
Possible Defenses against Child Pornography Charges
Whether you are being prosecuted at a state or federal level – or both – there are ways to fight back. Understanding your actions and the laws that may be applied are key to ensuring you are properly defended.
Here are a few valid arguments which can combat child pornography accusations.
I Didn’t Know It Was Child Porn
The primary requirement for conviction of this crime is intent. When you have accidentally accessed or downloaded images you were unaware were child pornography, it is not a sex crime.
It’s Not Mine
A defendant may also argue that although the material was on their electronic device, they are not the one who downloaded it. For this argument to hold water, you must prove multiple users accessed the device, and that someone else is responsible for the images ending up in your possession.
No Probable Cause
As with any criminal investigation, police must have probable cause in order to search an individual’s computer or home. If proper procedures weren’t followed, evidence obtained during the search is inadmissible in court.
Which defense is most likely to help in your situation? This may seem like a simple question, but there are a lot of legal variables involved. For the best chance at a positive outcome, consult with a Houston defense attorney experienced in these types of cases.