Whatever one thinks of pornography, most forms are actually legal with the significant exception being child pornography.
More frequently than one would expect, some people wrongly assume that, because it is so readily available on the internet, it must be legal. It is not. It is, however, in fact, much more accessible than ever before. Until recently, people looking for pornography would have to make much greater assertive efforts to obtain it. They could travel to a specialized “bookstore” or send away to have things sent to them in a plain brown wrapper.
Nowadays, it is available instantly at the press of a button on one’s laptop. This may explain why the number of prosecutions for such illegal material has absolutely exploded and is more prevalent in courtrooms today than ever. One prosecutor described such prosecutions as equivalent to “shooting ducks in a barrel.” They are so easy to track down online with such a well-documented provable trail that it makes a defense all the more challenging. The only thing holding back an even greater number of prosecutions is the lack of more law enforcement manpower to monitor online activity.
Surprisingly, a number of people express surprise that the looking at this material online is such a serious crime. They say something to the effect of “But I was only looking at this by myself in the privacy of my room with no one else around. Who am I hurting? How can passively looking at photographs when no one else can see me doing it hurt someone? I would never ever approach or bother a child in person.”
The law clearly does not recognize this sentiment. The answer is that you, personally, just looking at a photo may not think you’re hurting the innocent child in that photo, but somewhere down the line someone else is. And if you weren’t providing an audience or market for that photo, then the actual in-person abuser taking the photo or video might not be creating it for you at his end.
Many others mistakenly believe that, if one looks at child pornography, then “deletes” it from their computer, that they are not in any legal jeopardy because it no longer exists. However, they may not be aware that anyone with knowledge of computers can tell you that a “deleted” item, still exists on the computer hard drive. It just can’t be easily and readily seen or accessed. However, if a computer is seized by the police, their forensic experts using their advanced skills and equipment, can still find it.
In addition to facing possible incarceration for such an offense, one will be required to be placed on the sex offender registry.
There are a number of defenses to be explored if one either has been charged or is being investigated for child pornography charges. For example, it is occurred that innocent people have been charged if a friend, roommate, family member or neighbor or others with access to ones computer used it to look at child pornography without the computer owner’s knowledge. Additionally, it has also happened that online viruses and hidden files have unwittingly placed such material on an innocent person’s computer. Every year that goes by, with the advancements in internet technology, everyone remains increasingly vulnerable to material being unknowingly placed on ones devices. Also, an attorney can investigate whether you or your computer were the object of an illegal search where then the entire case might have to be dismissed.
For these reasons, it is important that one contact an attorney skilled in the defense of these kinds of charges immediately upon learning that an investigation has commenced.
This is how these cases frequently unfold. Usually, unknown to the suspect, law enforcement personnel are monitoring illegal websites including file-sharing sites or perhaps someone has tipped them off. Once they identify users of the site, they get a search warrant, show up at the suspect’s home, and then seize every suspected computer or electronic device. The police very often do not arrest on the spot but rather wait until their forensic staff has examined the devices for illegal material back at the lab. This may very well take a number of months. At that point, if one hasn’t been arrested yet, they will either be arrested at that time or summoned into court.
It is difficult to determine in advance where one will be prosecuted. Some cases are prosecuted in the District Court of Massachusetts while others are indicted to the Superior Court. Still others are prosecuted in federal court.
The three most common charges in Massachusetts state courts concerning such pornography are:
- Possession of child pornography
- Dissemination of child pornography
- Posing a child in a state of nudity
In state court, there is an increasing number of prosecutions for dissemination rather than just mere possession. Some defendants are surprised when they are charged with dissemination because they insist that they never shared their photos with anyone. However, since large numbers no longer find this illegal material on regular websites, but rather on file-sharing sites, they are charged with dissemination. This is because the nature of file-sharing sites is that you can take whatever material you want off of another person’s files and anyone else can take material off of yours. So, even if one is unaware that someone has ever taken files off their site and even if no one ever has, they can still be charged with the more serious charge of dissemination just for having been a member of a file-sharing site.
Concerning the charge of possession of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant purchased or possessed pornographic material of a person under the age of eighteen.
- Pornographic material means visual material of almost any medium that, either actually or by simulation, exhibits: (a) sexual intercourse with a person or animal; (b) sexual contact; (c) masturbation; (d) lewd touching; (e) excretion or urination in a sexual context; (f) sexually sadistic, masochistic or sadomasochistic acts; (g) lewd display of genitals, buttocks, pubic area or female breast(s);
- The defendant purchased or possessed such material knowingly;
- The defendant had knowledge of the nature or content of that material; and
- The defendant knew or reasonably should have known that the child shown in that material was under the age of eighteen.
Concerning the even more serious charge of dissemination of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant disseminated pornography.
- That pornography exhibited a person under eighteen years old in a state of nudity or sexual conduct;
- The defendant knew or should have known the contents of that material.
- The defendant disseminated that material with lascivious intent. Lack of lascivious intent can be proven through evidence of a scientific, educational or medical purpose for a school, library or museum.
- The defendant intended to disseminate that material.
The most serious of all child pornography charges — posing or exhibiting a child in a state of nudity or sexual conduct is a serious charge contains the following elements:
- The defendant: hired; coerced; solicited; enticed; employed; procured; used; caused; encouraged; or knowingly permitted a child under aged eighteen to pose or be exhibited in a state of nudity or sexual conduct.
- The defendant knew or should have known that the defendant was under the age of 18.
- The defendant had lascivious intent.
- The purpose of the defendant’s actions was representation or reproduction in any visual material. Free legal consult
If the case goes to federal court rather than state court, the consequences can often be even more serious. If one is charged with receiving child pornography rather than just possessing child pornography (even though there may seem to be little difference), one will face a mandatory minimum sentence in the federal penitentiary of 5 years. For producing child pornography, one is facing a mandatory minimum sentence of 15 years.