If you face a charge for possessing or distributing child pornography, you should know about some common defenses against child porn charges.
One possible defense strategy when facing child porn charges is that of unintentional possession, also known as “unintended possession.” This signifies that you didn’t mean to have child porn in your possession, or that the prohibited material didn’t belong to you. You may not have even been aware of its existence.
An unintentional child porn defense may come into play when child porn is discovered on a computer that is shared, or to which others besides you may have had access without your knowledge. This may be the case, for instance, when a computer is used for work. In this case, another person may have downloaded child porn for themselves and then accused you of doing it.
It’s also possible that you used an unsecured network or a shared network which enabled someone else to download child porn without your knowledge.
An angry spouse, ex-spouse, lover, ex-lover, co-worker or employee also may be motivated to download child porn on your computer in order to frame you for the crime. Such a person may tip off police about the material’s existence on your computer. In this case, you could be falsely accused of possessing child porn.
Another pertinent question is whether the computer was used or pre-owned when you purchased it. If so, that may enable a defense of unintentional possession of child porn.
A knowledgeable child porn defense attorney can clear this up with help from a computer forensics expert. They can determine when the content was downloaded and perhaps establish that it wasn’t possible for you to have downloaded it.
The important thing is to establish that you didn’t possess child porn to your knowledge.
Also, keep in mind that a claim that you viewed child porn isn’t enough to convict you. Rather, evidence must show that you took affirmative action to save or possess child porn images. If your defense lawyer shows this cannot be proven, you have a legal defense.
As you well know, the world of the Internet can be treacherous, and your computer may be subjected to a virus, malware, spam or other input without your knowledge or consent. Indeed, a hacker may be able to cause child porn or other illegal images to be downloaded to your computer without your awareness or consent.
Many people have numerous files on their computer which they didn’t know they possessed. Such accidental possession can be a valid child porn defense.
Yet another possible child porn defense involves a claim of an illegal search or arrest.
Police often make procedural errors which violate a person’s Fourth Amendment constitutional rights. Regardless of your guilt or innocence, if evidence was seized by police illegally, your defense lawyer can argue that it is inadmissible in court—meaning it cannot be used against you.
In some cases, police lie in order to get a warrant to seize a computer or other source of child porn. Or, police may search beyond the scope of their search warrant by looking into computers or locked containers which weren’t named specifically in the warrant.
A similar child porn defense involves claiming entrapment by police, which is when police induced you to commit a child porn offense which you wouldn’t have done otherwise. Your defense is that you would not have committed the offense if police hadn’t contacted you and persuaded you to do so.
Police also may induce persons to purchase content which wasn’t clearly child porn and not labeled as such, then arrested such persons for buying content which they didn’t know was child porn. Such entrapment often happens when police run a child porn sting operation which rounds up many individuals — not all of whom are guilty — in a widely cast net.
Child porn has specific definitions under Texas law and federal law. For material to be deemed child porn, it must meet these definitions. Usually, that means the content must depict naked children or sexually explicit situations involving children.
If the individuals in the content are determined to be non-minors — that is, 18 years old or older — then the content cannot be deemed child porn. The prosecution must be able to prove that the subject of the material was under 18.
In addition, if such content serves a scientific, religious or educational purpose it should not be considered child porn.
You also may be able to claim that the material deemed “child porn” features a minor who was your spouse at the time of the offense, and you weren’t more than two years older than the minor.
Claiming a psychological addiction to child porn isn’t a winning defense, but it is a possible means to minimize your sentence if you are convicted. In some cases a sentence can involve a treatment program rather than imprisonment for persons suffering from a child porn addiction.
Child porn arrests are common in Texas, and child porn charges hit all walks of life. If you or a family member faces such a charge, notify a skilled defense attorney in Houston, Harris County, Fort Bend County or Montgomery County.
Child porn charges can bring severe punishments, and your future may be at stake. In fact, the average federal sentence for a child porn offense is higher than for any other crime except murder.