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Frequently Asked Questions About Child Porn Charges

Published: Jan 25, 2023 in Sex Crimes

Child pornography is illegal under Texas and federal law. However, knowing it is unlawful does not automatically prevent a charge. Nor does it clarify when and why charges were filed or what penalties you could face.

Considering how intimidating child pornography accusations are, it is best to know how child porn charges arise. Know what to do if you or a loved one are wrongly charged with possessing or distributing child pornography.

Common Questions About Child Pornography

As a former U.S. federal prosecutor with decades of criminal defense experience, particularly in sex crime cases, attorney Ned Barnett has compiled the most asked questions about child pornography charges and what someone can expect in similar circumstances.

However, please remember that every case is unique. If you or someone close to you has been charged with a child porn-related offense, it’s best to consult a lawyer as soon as possible. The Law Offices of Ned Barnett offers free and confidential case evaluations.

Call (713) 222-6767 immediately.

What’s Considered “Child Pornography”?

Federal law, specifically United States Code Title 18, Section 2256, defines child porn as any visual depiction of sexually explicit conduct involving a minor (a person under 18 years old). The image does not need to be viewable —undeveloped film or electronically stored data that can be converted into images may be considered child pornography.

Also, the image in question does not have to depict actual sexual conduct — the threshold is whether the material is “sexually suggestive.”

What Are the Possible Criminal Charges for Child Pornography?

Criminal charges related to child pornography will vary by state law. In Texas, for instance, Texas Penal Code Section 43.26. It is illegal to create, use, own, promote, distribute, or sell any visual depiction of children involved in sex or acts of a sexual nature.

Child porn charges can result if there is evidence you:

  • Participated in the creation of pornography involving a child
  • Had child pornography on your person, cell phone, computer, or other devices
  • Transported child pornography from one place to another
  • Promoted the sale of child pornography
  • Sold child pornography to another individual or organization.

A “visual depiction” includes photos, videos, film, negatives, or slides. It can also be electronic data on a flash drive, hard drive, CD, or anything that could display explicit images.

When is Child Porn a Federal Crime?

Although mostly charged at the state level, child pornography becomes a federal offense (harsher penalties) if your case involves interstate or foreign commerce. This can mean sending images of minors via mail, email, file sharing, or the internet. It is possible to face both state and federal child porn charges.

What are the Penalties for Child Porn?

If convicted of possessing, distributing, or making child pornography, a lot will factor into your sentence and penalties. Essentially, the court will consider the type of child porn involved, the amount in question, whether you are part of a network, your prior record, and whether you caused harm to the child in handing down penalties, which will almost assuredly include registering as a sex offender.

A first-offense child porn conviction is a third-degree felony punishable by 2 to 10 years in prison. A second conviction makes it a second-degree felony (2 to 20 years), and subsequent child porn convictions make it a first-degree felony with sentences ranging between five to 99 years or life in some cases.

If charged at the federal level, child porn can result in 15 to 25 years for a first offense and 15 to 40 years for repeat offenders.

Is there a Difference Between Looking at Child Porn & Possessing It?

Texas law lumps viewing and possessing child porn into the same charge, but not all viewing is illegal. The statute only prohibits accessing child pornography with the intent to view it.

This is important because there can be situations in which you might inadvertently see child pornography. Texas law doesn’t punish the act of viewing. Instead, it punishes the deliberate actions you take to view child pornography.

What if I Click on The Wrong Link or Accidentally Downloaded Child Porn?

Law enforcement agencies are not looking to prosecute individuals who accidentally end up on the wrong site. You should not be too worried about mistakenly going to an illegal site because you did not intend to commit a crime. Under Texas law, you must knowingly or intentionally possess, or knowingly or intentionally access with the intent to view, child pornography to be found guilty.

However, you need to be careful. Adult pornography is typically legal, yet various websites may contain illegal material. If you accidentally click on a child pornography website or discover a site has content that includes child porn, leave the site immediately and check your computer for any unintentionally downloaded materials.

What if I Thought The Parties Involved were Adults?

Under Texas’ child pornography law, you must know that the material depicts a child or adolescent younger than 18. If you thought the participants in the pornographic material were adults, then you need to tell your defense attorney.

If you were unaware of the individual’s age and believed them to be adults, this is an affirmative defense to child pornography charges. However, the defense’s strength depends on the circumstances, as you cannot argue being unaware of a participant’s age if they are a child.

What if the Child Porn Belonged to Someone Else?

If you are charged with a child pornography crime in Texas and the materials belonged to another person, speak with your attorney about how this misunderstanding arose. This is a potential defense, yet it may be difficult to establish. You may have to prove the other individual had access to your home, vehicle, office, or computer.

If you can establish this, you can prove you did not intentionally or knowingly possess or access child pornography. Keep in mind that this defense may not work if you wish to claim it was someone else’s property, yet you do not pinpoint a specific person.

Can Sexting be Child Porn?

Yes, sexting can lead to child pornography charges if it depicts a minor engaged in sexual conduct. If minors take photos or videos of themselves in the nude or participate in sexual activity and send them to anyone else, they could be charged with a crime. If the recipient intentionally keeps the video or photo, they could also be charged with a crime.

Do the Police Need a Warrant for My Computer?

To obtain a valid search warrant for your computer or other electronics, the police must go before a judge and provide probable cause. Probable cause consists of facts supporting the likelihood that you are involved in a crime. Therefore, there must be facts that suggest you intentionally or knowingly engaged with child pornography.

How Do People Get Caught with Child Porn?

Child porn investigations typically involve multiple agencies (state and federal) and use various tactics to gather evidence. Nowadays, police rely heavily on technology to catch people with child pornography, like tracking IP addresses and monitoring P2P networks, string operations, and other strategies to identify child pornography suspects and build a case.

Can You Avoid Prison for Child Pornography?

The best-case scenario if you’re accused of—or worse, charged with—child porn is for the prosecutor to drop the case or the judge to dismiss the charges. The next-best option is that you prove your innocence in court. But if a child porn conviction is likely, you can and should work to mitigate the harm and avoid jail if possible.

While the unique details of your case will ultimately determine the outcome, you may be able to seek mental health treatment for any underlying issues, house arrest, probation, or other alternatives to incarceration. An experienced lawyer can best evaluate these options and your eligibility.

Call a Lawyer if You Are Suspected of Child Porn

If you have been accused of any type of child pornography offense under Texas or federal law, do not wait to call a lawyer. You will need Houston child sex crimes attorney Ned Barnett by your side as soon as possible to defend your rights and freedom aggressively.

Contact The Law Offices of Ned Barnett at (713) 222-6767 to schedule a free consultation.