10 Things To Know About Felony Child Porn Charges in Texas

If you think you are being investigated on child pornography charges, then it’s wise to be proactive and learn all you can about state and federal laws for sex crimes and how fast your world can be turned upside down with an arrest.

Child Porn Arrests Can Mean Jail and Sex Offender Registry

Sentencing can include incarceration and a permanent place on the sex offender registry.  Sure, last week’s case study was an excellent result.  A Dallas teen faced years of jail time and ended up with probation, time served and supervised release.  But there’s no cookie cutter defense when someone is accused of possessing or distributing child porn.

Here are 10 things to know about felony child porn charges in Texas.

1.  Definition of Child Pornography

Images that are on paper, on a screen, or stored in the cloud or on a drive will not be protected by the First Amendment if they meet the legal definition of pornography under either state or federal law.

Federal statute 18 USC 2256 defines “child pornography” as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age) as defined in 18 USC 2256(2).

Specifically, under federal law, “child pornography” means any “visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

1. the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
2. such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
3. such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”

Texas Penal Code Section 21.15 states that it is against the law in the State of Texas to “knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age engaging in sexual conduct” as defined in Texas Penal Code section 43.25(a)(2).

2.  State and Federal Jurisdiction

Both federal law and state law have child porn laws.  In many cases, federal laws will apply these days because the internet will be involved.  The federal government will claim jurisdiction if there was any downloaded image involved in the charges, for example, or if the storage device (say, a flash drive) moved across state lines or national borders at some point.

It is possible to be arrested, charged, and prosecuted under both the federal and state child pornography laws.  Prosecutions can proceed in both Texas courts and federal courts if the prosecutors in both jurisdictions choose to do so.

Remember the Subway Guy? Read, Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing.

3.  Illegal Images

Federal law defines “visual depictions” as “photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor.”  It can include undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography.

4.  Illegal Subject Matter

Under the federal criminal code, the “sexually explicit conduct” in that image includes not only sexual acts but anything things that are “sexually suggestive.”  Texas law has specific definitions in Texas Penal Code section 43.25(a)(2).

5. Age of the Individual in the Image

Anyone who is not a legal adult is a minor under the law.  Minors are those under the age of 18 years under federal law and it does not matter if a particular state defines the age of majority earlier than 18 years.  Federal law will control on federal charges.  Minors under the law cannot consent to sexual acts.  Texas also defines the age of majority as 18 years.

This means that federal and state “child pornography” charges can be filed against someone who has possession of an image of an young woman who is two months shy of her 18^th birthday just as they might be if found with images of a preschooler.  No distinction is made on the age of the individual who is under the age of legal consent.

6.  Categories of Child Pornography in Criminal Law

The sex crime statutes criminalize child pornography in different areas.  See, 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A.  This is true for both federal and state charges.  See Texas Penal Code Section 43.25 et seq.

You can be arrested and charged for having it, as well as for being in the business of sharing it:

• Receiving Child Pornography
• Possession of Child Pornography
• Distribution of Child Pornography
• Production of Child Pornography.

7.  Legal Defenses to Child Pornography

No two cases are identical and the defense to each allegation and charge must be built according to its own unique particulars.  However, as a general rule it’s fair to say that the most common defense to child pornography charges, particularly those of receipt or possession, is that you had no idea that what you were downloading was child porn.

Or that the site you were visiting was a child porn site. Or that you didn’t realize that the person in the image was under the age of 18.  It does happen that someone downloads a TV Show or Movie off the internet and unknowingly takes possession of child porn.  Mistakes do happen.  The defenses here:  lack of intent or mistake of fact.

Another common defense is that you didn’t take possession of the illegal images.  Maybe you’re facing charges for a computer drive that you share with other people. It’s been known to happen that someone downloads child porn and uses the name or identity of a patsy in an attempt to protect themselves from being caught.  If you’re a patsy, that’s a defense.

Finally, there are many defenses based upon search and seizure laws and other challenges to how the investigation was conducted.

For more information here, read: Child Pornography: Defending Against Overreaching Investigations Using the Internet.

8. Sentencing for Child Porn

If you make a plea deal or if you go to trial and are convicted, the range of punishment will depend upon several things.  First time offenders are not treated the same as career criminals.  Have received child porn or having child porn in your possession are treated differently than if you are found to have made the illegal images (production) or if you have been sharing them (distribution).

For instance, under 18 USC 2251, someone who is a first time offender found guilty of child porn production faces federal sentencing guidelines with a statutory minimum of 15 years incarceration (30 years maximum).  Someone with prior convictions of making child porn can be sentenced to life imprisonment under federal law.

9.  Sex Offender Database

Those who plead guilty to a child pornography charge under state or federal law will likely be ordered to register in the national sex offender database.  For details, see:

•  Sex Offender Registry in Texas: Stigma and Second Chances; and
• Texas Sex Offender Registry List Is Huge But Not Every Listed Sex Offender Is an Adult Who Committed a Sex Crime.

10. Computers and Child Porn Charges

As exemplified in last week’s case study, child porn charges can culminate after online investigations of computers and the web.  (That case began in New Zealand and the Kim Dotcom case.)  Both federal and state investigations will use search warrant laws and seizures under the constitutional police powers to look into the contents of clouds and drives in order to locate illegal child porn images. Read, Federal Child Pornography Charges Often Involve Federal Surveillance of Online Communications, Personal Email Records, Stored Computer Files

There are active joint task forces working to track down child porn on the web.  They may reveal individual IP addresses which lead to arrests.  Additionally, there may be reports made by computer repair personnel or other third parties that child porn has been discovered on a computer, tablet, or phone.  See, Child Porn Charges: Busted By FBI Computer Surveillance and Now, Private Web Hackers on Social Media

The extent to which law enforcement can investigate over the web as well as accessing computer drives and stored information is a developing area of the law.  While many view their mission to find and stop the abuse of child through the production and distribution of child pornography as a valid one, it remains that this must be done with respect for the federal constitution and the integrity of longstanding privacy and search and seizure laws. See: FBI Investigations and DOJ Prosecutions: Fighting for Your Privacy Rights.

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”