Prosecution of Internet child porn is sensitive. If the questionable material is a picture of an adult or minor, defense counsel must explore this differentiation.
The Internet is a virtual melting pot of various kinds of crimes, but none as serious as child pornography. Since these types of charges carry large prison sentences, those accused of this kind of crime are entitled to a well thought out defense.
It is critical to know if the material in question has pictures or an adult or minor, as this is regarded as a pivotal fact that defense counsel must delve into because the government doesn’t need to present expert witness testimony to prove this.
Just precisely what types of pictures are considered to be sexually explicit conduct? In most instances a court will apply the Miller test to see if the images in question are obscene. For example, some of the questions the court will ask are whether or not the picture (in its entirety) appeals to prurient interests in a distasteful manner and does the photo lack serious value (as opposed to artful photography).
It’s fairly clear that pictures flaunting genitals, snapshots of a minor having sex or willing to have sex, or candid shots of children as sexual objects are obscene by society’s standards today, and certainly in the eyes of the law. Not every pictures fit into one of those definitions though, which is why defense counsel needs to show other evidence that the picture “as a whole” is “not” obscene. Yes, the images may be disturbing, but may also be deemed to be child erotica and that is not illegal by statute.
In order to defend an individual charged with child pornography, defense counsel must have a thorough understanding of the law, both the statute with which the defendant is charged, and the United State’s Sentencing Guidelines. Often, the arguments involved in these types of cases are technical and involve how to correctly apply the law.
Further, these types of cases carry substantial penalties outside of the criminal penalty. For instance, in almost any case of this kind, the government seizes the computer and other equipment associated with the charges relating to the alleged crime. Defendants should also be aware that conviction of one of these types of charges carries federal and state registration requirements, and also may mean civil confinement (where the state turns a criminal sentence with a specific end date into an indeterminate life sentence by placing them in mental hospitals) after being in jail.
There is a great deal of controversy over civil confinement and one court in 2002 even went so far as to reverse themselves and state that “absent a finding of a nearly complete lack of self control, a sex offender may not be committed after he has served his sentence.” Having said that, at least 20 states have this option on the books.
As you can see, the defense for someone accused of child pornography needs to be approached with care and each detail must be thoroughly checked for accuracy. If you or someone you know has been charged with this type of crime, or is about to be charged with this crime, immediately speak to defense counsel with extensive experience in this area. These types of cases are very difficult, both because of the disturbing nature of the crime, as well as the lengthy penalties associated with conviction. It is important to choose counsel who understands these kinds of cases and who is not afraid to give you an honest assessment of your situation.
Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.
