Federal and state laws impose harsh penalties on people convicted of possessing, disseminating or producing child pornography. Penalties include prison time, fines, registering as a sex offender, and a lifetime of personal and professional ruin. Understanding the crimes of possession, dissemination and production of child pornography and possible defenses to these charges are critical. I have defended many people accused of these crimes in state and federal court and will provide you with the best possible defense.
Child Pornography Charges
Possession of Child Pornography refers to the act of knowingly purchasing or possessing material of a sexually explicit nature of a child that the possessor knows or reasonably should know is under the age of eighteen years old. Material is considered sexually explicit if it shows the minor: engaging in sexual intercourse, engaging in oral or anal sex, masturbating, engaged in a lewd act, urinating or having a bowel movement in a sexually explicit way, engaged in sadomasochistic activities, depicting or posing a lewd exhibition of the genitalia, buttocks or female breasts.
Possession of child pornography is penalized in Massachusetts General Law chapter 272 section 29C. The penalties for the first offense of possession of child pornography is up to 2.5 years in a county facility or up to 5 years in state prison and a fine between $1,000 and $10,000. A second offense carries a punishment of a mandatory minimum of five years in prison and a fine between $5,000 and $20,000. Third and subsequent offenses are penalized by a mandatory minimum of ten years in prison and a fine between $10,000 and $30,000.
Dissemination of Child Pornography refers to a person who, with lascivious intent, intentionally distributes or possesses with intent to distribute an item that depicts a child under the age of eighteen years old in a state of nudity or participating in sexual conduct. The person must intentionally distribute this material with sufficient knowledge of the contents of the material and having the consent of the person under 18 to disseminate the material cannot be raised as a defense. The penalties for dissemination of child pornography under Massachusetts General Laws chapter 272 section 29B include a mandatory minimum prison sentence of ten years and up to twenty years, plus a fine between $10,000 and $50,000 or three times the value of any economic gain derived from the dissemination of the material, whichever is greater.
Secretly Photographing, Videorecording, or Electronically Surveilling the intimate parts a child under the age of 18 under or around their clothing is punishable under Massachusetts General Law chapter 272 section 105(b). This offense carries a maximum sentence of up to 2.5 years in the House of Correction or up to 5 years in state’s prison.
Posing a Child in a State of Nudity or Sexual Conduct is a prohibition against creating child pornography criminalized in Massachusetts General Law chapter 272 section 29A. Creating a visual depiction of a person under 18 is illegal if the creator of the image: 1) knew or had reason to know that the subject was under 18; 2) knowingly and with lascivious intent participated in exhibiting a child in the nude -or- knowingly participated in having the child engage in the depiction of a sexual act; and 3) did all this for the purpose of recording, photographing, or creating some other visual representation of the child. This crime is punishable by up to 20 years in state prison with a mandatory minimum sentence of 10 years. A fine between $10000 and $50000 can also be imposed.
Possible Defenses if Charged with These Crimes
Charges of possession or dissemination of child pornography are serious and often complex cases, with the possibility of state and federal charges. Listed below are possible defenses to accusations of possession and/or dissemination of child pornography.
Content was Not Child Pornography
One defense to the charges associated with child pornography is that the material in question does not feature a child under the age of eighteen years old. If the material does not depict children in a sexually explicit way it is not considered pornography. There are also exceptions to the child pornography rule for some material that serves an educational or scientific purpose.
Lack of Knowledge/Unintended Possession
This defense often arises when the person accused of possessing or disseminating the pornography did not acquire it intentionally. If someone accidentally clicks on an attachment of an email or clicks on a link that purports to send the user someplace else but instead sends them child pornography that person did not intend to possess or disseminate it. Cookies, viruses, and hidden files can also keep child pornography on a computer without a user even knowing about it. Intent is one of the elements of possession and dissemination, so if the person accused lacks the intent through a lack of knowledge or unintended possession, they have a valid defense.
Lack of Possession
The person accused may also lack the required possession of child pornography. This defense comes up often when multiple people share a computer, such as a work computer, where multiple people have access. Another user of the computer may have downloaded the material and the person charged was not responsible for the download and may have not even know that the pornography was on the device. Forensic experts are needed to show when and how the material was downloaded and this information can be used as a defense in court.
No Lascivious Intent
Someone accused of photographing or recording a child in a state of nudity can show that they did not have lascivious intent and were not creating a lewd image. For example, a parent photographing their child playing in the bathtub is creating an image where a minor’s genitals may be depicted, but has no lascivious intent in the creation of the photograph.
Child pornography often involve the police searching devices containing the images. Perhaps the police searched the devices without a warrant or without getting true consent from the owner of the device. Alternatively the warrant may be defective or the police may search beyond the scope of a warrant or may lie to get a warrant. An experienced criminal defense attorney can get evidence seized in an illegal search thrown out in court.
A Superior Court judge suppressed child pornography files found on my client’s computer. The investigation began when a police officer accessed the computer remotely through a peer-to-peer file sharing network and found illegal files. The police determined the IP address that the computer was using to access the Internet, learned that it was registered to Comcast, and got the subscriber information for the account. The judge suppressed the evidence found on the computer because the search warrant affidavit did not establish sufficient probability that the device with the contraband files was in the home at the time that the search warrant was executed and because the items listed in the affidavit for which the police were permitted to search was too broad.
One final defense to charges of possession or dissemination of child pornography is entrapment. Entrapment occurs when police arrest a person for committing a crime they convinced the person to do that would have otherwise never done it. If an undercover police officer convinces a person to download child pornography who would never normally do so and then arrest that person for the crime, that person has a defense of entrapment.
Stay Quiet, Demand a Lawyer, and Call Me
If you or a loved one is ever accused of possessing child pornography, the best thing you can do is to refuse to talk about it with the person making the accusation, especially if it is a police officer or other law enforcement official asking you questions. Demand to speak to a lawyer and remain silent after that. Many child pornography investigations begin with the police executing a search warrant that permits them to search your home, computers, and other electronic devices. If police arrive with a search warrant don’t say anything especially when they ask who owns a particular computer or electronic device. If you are asked to consent to the search you have the legal right to refuse and insist that they get a search warrant.
Hiring an experienced criminal defense lawyer is your best chance of overcoming charges of possession or dissemination of child pornography. If you have been charged with one of these crimes in eastern or central Massachusetts, call The Law Offices of Keren Goldenberg today.