Defenses to Federal Child Pornography Charges
If you found this webpage because you were searching for “how to beat a child pornography charge” or “how to get a child pornography not guilty verdict” you likely want to hear that beating a federal child porn charge is easy.
I’m sorry to say that it isn’t.
The Bad News About Federal Child Pornography Charges
You’ve probably heard the statistics already – more than 90% of the folks who are charged with a federal crime, including a federal child porn charge, plead guilty. Of those who go to trial, the vast majority are convicted at trial.
To make it worse, if you’re convicted of receiving child pornography there’s a five year mandatory minimum prison sentence – even though courts have said that there’s really no difference between receiving child pornography and just possessing it. And possessing child pornography doesn’t have a mandatory minimum.
Even if you don’t have a mandatory minimum sentence, the federal sentencing guidelines are bad enough that if you’re convicted of a federal child porn offense you’ll likely get a number of enhancements based on the number of images, the kinds of images, and the ages of the people in the images.
And, if you used a computer, you’ll also get an enhancement for that.
So, what are your defenses to a child pornography charge.
The Elements of a Federal Child Porn Charge
First, start with the elements of a federal child porn charge – these are the things that the government has to prove are true in order to get a jury to convict for a federal child porn charge.
For example, possession of child pornography is when a person:
- knowingly possesses
- any image
- that contains child pornography, and
- the image moved interstate commerce or was made by items that moved in interstate commerce.
If the government can prove all of those elements, the jury will be instructed to find the person accused guilty.
The Typical Defenses to a Child Pornography Charge
There are a few routine ways to challenge what the government proves.
Sometimes, a person will argue that they didn’t know what they were doing on the computer. If there are only a few images, or if they were stored in such a way as to suggest that the person simply didn’t understand what the images were, that could be one way of attacking the knowledge element.
Put another way, the government has to prove that the person knew the images were child pornography. If the person searched on google for child porn, it would be harder to argue that the person didn’t know that what was found was child porn. But if the person merely clicked on a link in an email sent by someone else – and there was little other context in the email – that may make for a stronger argument that the person didn’t realize what the images were.
There are fewer challenges to whether the images are images or whether they’re actually child pornography. The government these days is relatively sophisticated about finding verification that the people depicted in their cases are actual children.
Which shifts to the last element. Remarkable as it may seem, sometimes the government can forget to prove up that the images traveled in interstate commerce. For example, in one case from Iowa, the government simply neglected to prove that element. The man was convicted at trial, then appealed, and won on appeal.
But, again, these are rare cases. The vast majority of people accused of child pornography crimes in federal court are convicted. It takes a tremendous amount of diligence and work to avoid prison if you’re charged with a federal child pornography offense.
We realize this isn’t the ray of sunshine you may be looking for if you’re facing child porn charges. If, in spite of that, you’d like to talk to us about what we can do to help your situation, please call us at (202) 640-2850.