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Proving Child Porn was Accidentally Downloaded

Proving Child Porn was Accidentally Downloaded

Published: Jul 13, 2023 in Child Sex Crimes, Criminal Defense

When child pornography is found on your computer in Texas, law enforcement will likely charge you with possession of child porn whether or not you intended to download it. While this may cause panic, know that you can take steps to avoid conviction and preserve your reputation and future.

If you’ve been charged with possession of child porn, you need to contact an experienced criminal defense attorney right away. One option to combat the accusations is to prove that the illicit materials were accidentally downloaded. Houston criminal defense attorney Ned Barnett has over 30 years of experience defending people charged with Texas sex offenses and a successful history of disputing invalid charges based on accidentally acquired child pornography.

For aggressive, knowledgeable, and highly technical legal representation, call The Law Office of Ned Barnett for help. Contact attorney Barnett at (713) 222-6767 or contact us online for a free and confidential case evaluation.

Possession of Child Pornography in Texas

Under Texas Penal Code Section 43.26, it is illegal for anyone to “knowingly or intentionally” possess any material that depicts a child younger than 18 engaged in sexual activity. Unless you have prior convictions, possessing child pornography is a third-degree felony in Texas. If convicted, you face a prison sentence of 2 to 10 years and a maximum fine of $10,000.

If you have a prior conviction of possessing child pornography and are convicted a second time, it is a second-degree felony, and you will face 20 years in prison. A third or subsequent conviction involves up to 99 years imprisonment. It may also be more difficult to prove the material was downloaded by accident, as prosecutors will try to use your previous record in their case against you.

How is Child Porn Accidentally Downloaded?

Thanks to high-speed internet and the mass amount of unscrupulous people and websites, accidentally downloading child pornography is much easier than many people think. There are multiple ways child pornography can be accidentally downloaded, including:

Peer-to-Peer Networks

Peer-to-peer (P2P) networks allow users to share files and download information online without a centralized server or administrator. Accidental downloads of child pornography often occur on P2P networks, where you inadvertently save child pornography thinking you were getting something else. The files can be mislabeled, or child pornography can be included with other legal files.

Scam Websites & Hackers

Although somewhat rare, there are malicious websites that will gain access to your computer and implant illegal files. It is also possible for hackers to gain access to your computer and download illegal files to your hard drive.

You Believed the Person was 18+

The website or person sharing the image with you may have claimed that the person was 18 or older when in fact, they were a child younger than 18. As a result, you can wind up being charged with possession of child pornography.

This “question of age” can be problematic, as it is left up to the court or jury to determine whether the person appeared younger than 18.

Regardless, prosecutors must prove you knew the person was younger than 18 to convict you. An experienced lawyer can help build a credible defense that persuades the judge or the jury that you honestly and reasonably believed the person to be 18 or older.

What to Do if You Accidentally Downloaded Child Pornography

Once you realize a device contains child pornography, there are a few crucial steps you can take that will help solidify your case later.

Delete the File(s) Immediately

The moment you realize you accidentally downloaded child pornography, delete it and do not view or interact with the material. Even though a deleted file will remain on your hard drive, the fact that you immediately made an effort to get rid of it can help prove that you did not intend to possess child porn.

Hire an Experienced Sex Crimes Defense Attorney

It’s never too early to get a lawyer, and if you’re reading this, there’s a high chance you need one. An attorney can intervene and provide guidance before law enforcement officials question you.

With child pornography-related charges, many people will view you as guilty before you can prove them otherwise. This means police officers or federal agents will not go easy on you.

Exercise Your Rights During the Investigation

Sex crime investigations in Texas can feel invasive and intense. Law enforcement officials will likely confiscate your laptop, phone, and other devices. Due to the sensitive nature of child sex crimes, people will often see you as guilty before you can prove them otherwise.

Remember: exercising your rights during a criminal investigation can protect your innocence and help you avoid self-incrimination.

You should always exercise your right to remain silent and your right to an attorney if questioned by police. You might inadvertently provide law enforcement officials with information they can use against you, potentially leading to a guilty conviction even if you are innocent.

Proving Accidental Possession

Proving that you did not intend to possess child pornography is complicated and will require some technical finesse. An experienced child pornography lawyer can use the following to demonstrate your innocence:

  • Your browser history. Your browser history can show you did not actively seek out child pornography. Suppose your history shows you went on a peer-to-peer website or searched for a file unrelated to child pornography. In that case, your attorney can fight against the prosecutor’s case that you “willingly and knowingly” downloaded the content.
  • Your file history. Every file on your computer contains a history. It will show when you downloaded it, when you last accessed it, and whether you did anything with it, like sending it to others. The file history can show that you immediately deleted the file, it was downloaded along with several other files, or you never opened the file. This can help prove you did not intentionally download child pornography.
  • Mistaken identity. If other people have access to your computer or other devices, you may be able to show that the file was downloaded when you were not using your computer. While it may not have been an accident for the person who downloaded it, it can at least prove that you were not the one who downloaded the images. It may also indicate that you have been hacked or the files were placed by a malicious website you inadvertently visited.
  • Other defenses. According to Texas Penal Code 43.26, the affirmative defenses that apply to sexual performance of a child charges (Texas Penal Code 43.25) can also apply to possession of child pornography charges. For example, if you were married to the child at the time of the offense or were using the material for a “bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose,” your lawyer can use this critical information in your defense.

Call Ned Barnett for a Case Evaluation

In addition to serious fines and lengthy prison sentences, a child porn conviction can do irreparable damage to your reputation. You need someone who will fight for your rights and a fair result. Attorney Ned Barnett has had considerable success in Houston child porn cases and knows what it takes to show that having illicit materials was accidental.

If you’ve been charged with possession of child pornography, contact The Law Offices of Ned Barnett by calling (713) 222-6767 to schedule a free and confidential consultation.