How Age is Determined in Child Porn Cases

Whether or not you are convicted of intentionally creating, viewing, storing, or distributing child pornography in Texas might rest on whether you believed the person or people depicted in the materials were minors.

At The Law Offices of Ned Barnett, we have helped many people who viewed pornography they reasonably believed only depicted adults. We know how law enforcement agencies and prosecutors determine age in child porn cases and how to fight back against flawed and unreliable evidence.

Contact The Law Offices of Ned Barnett at (713) 222-6767 or online for help. Houston sex crimes defense lawyer Ned Barnett offers free and confidential initial consults.

Who is a Child under Texas’ Child Pornography Law?

Texas Statute Section 43.26 specifically references materials depicting any child younger than 18 years old engaging in sexual activity. A child constitutes a person who is 17 years or younger at the time the pornography materials were created.

Federal child pornography laws take the same stance. Title 18, Section 2256 of the U.S. Code defines child pornography as any visual depiction of sexually explicit conduct involving someone under the age of 18.

Age is Often Called into Question

Whether or not a viewer can reasonably assume the subjects of the pornographic materials were adults becomes a contentious issue when teenagers are involved. A 16- or 17-year old girl or boy can look like they are at least 18 years old. Many people make an honest mistake of looking at materials with someone who looks older than they really are.

But during a child pornography case, the prosecutor will seek to submit evidence that the subjects of the materials was actually a minor and looked like a minor. They will attempt to prove that a reasonable person could not assume the subject was an adult.

How Prosecutors Establish Age in Child Pornography

Prosecutors can submit the relevant photos and videos as testimony in court to attempt to establish the child’s age. The jury can see the images for themselves and decide whether the subject appeared to be a minor or adult.

Law enforcement and prosecutors may establish a subject’s age by identifying the actual child in the materials. If the prosecutor can identify the child and their age at the time the materials were created, this can support their case. Embedded data in the images or videos can help law enforcement determine when the materials were created.

If the child can be identified, Texas law allows for personal inspection of the child as evidence in court.

Prosecutors can use the testimony of individuals who witnessed the creation of the pornography. The witness can testify regarding the child’s age based on the child’s appearance at the time or other personal knowledge of the child.

How the materials were labeled and advertised may be admitted into court as evidence. Prosecutors may establish a subject’s age and your knowledge that the subject was a minor based on advertisements for the materials, where you found the materials, and the file names.

Prosecutors often call on developmental experts, such as pediatric endocrinologists or pediatricians, to evaluate the age of the subject depicted in the pornography and testify in court. These medical experts evaluate numerous physical features to determine the person’s relative age, and specifically, whether they are over or under 18 years old.

In recent years, law enforcement and prosecutors have begun to rely on computer software to evaluate images and determine a subject’s age. This software also can be put into use during law enforcement’s hunt for child pornography online.

A Defense Lawyer Can Challenge Experts

During a criminal case, the defense attorney and prosecutor can challenge each party’s evidence, including expert witness testimony. Experts are individuals who are trained, educated, and highly experienced in a certain topic. They are not always right.

Using pictures and videos to identify a person’s age is not always accurate. Arlan Lee Rosenbloom, a researcher at the Division of Endocrinology, Department of Pediatrics at the University of Florida College of Medicine, conducted a simple study. He gave 16 pediatric endocrinologists each 10 images of women who were over 18 years old but were advertised on adult websites for their youthful appearances. Of the 160 estimates, the medical experts incorrectly stated 69% of the images were minors.

A Defense Lawyer Can Challenge Software

The use of software to find child pornography and identify a subject’s age in videos and photos has also raised many concerns.

Your lawyer will ask for a copy of the software. However, often, the prosecutors do not want to turn over the software program. Law enforcement agencies keep quiet about what their technology can do and how. Not being given access to the software may violate your right to a fair trial.

Attorney Ned Barnett may discover the software searched parts of your electronic devices it should not, violating your right to privacy and right to be free from unreasonable searches and seizures. Your lawyer also may have a basis for arguing the software program is ineffective or flawed in determining the subject’s age.

Let a Houston Sex Crimes Attorney Help

Pornography created by and depicting adults is not illegal, and you should not be punished for what you do in the privacy of your own home. When you are being accused of viewing child pornography when you had no intention of doing so, call The Law Offices of Ned Barnett at (713) 222-6767 immediately.