Virginia takes pride in having some of the toughest penalties in the country for crimes against children, especially those that involve child pornography. Unfortunately, regardless of whether you're found to be innocent of these allegations and your charges are eventually dropped, merely being accused of child pornography could harm your personal life. It can change how people you know and work with feel about you, wreck your marriage or other close relationships, and even damage your eligibility for child custody.
If you have been charged with child pornography, you could be subject to state felony charges, which carry heavy fines and jail terms as penalties. Trying to navigate the justice system alone at this time could be unwise. We at the Virginia Sex Crime Attorney understand the challenges associated with defending against state child pornography allegations and can work with you to get the best result possible.
What is Child Pornography Under Virginia Laws?
The definition and penalties for child pornography charges are laid forth in Virginia Code 18.2-371.1:1. In Virginia, a first-time offense for simply possessing child pornographic material is considered a class 6 felony. Class six felonies are subject to sentences of 1 to 5 years in Virginia's Department of Corrections. If the sentencing is at the discretion of the court, the offender could face a maximum of twelve months in jail along with court-ordered fines.
Any subsequent offense is penalized as a Class 5 felony offense. Class five felony offenses carry sentences of one to ten years behind bars, or a maximum jail sentence of twelve months, depending on the discretion of the court.
Under Virginia's laws on child pornography, the definition implies that any individual who is identified and found to be at least 18 years or even older and participates in sexually graphic visual content involving someone who is under eighteen is guilty of child pornography. Child pornography typically pertains to scenes or pornographic images of people who are unquestionably under the legal age of 18.
However, anything that tries to portray an individual below 18 could in reality be interpreted to be portraying an individual under 18 as well. It continues to be child pornographic material even if the person being charged is a minor too.
Virginia Child Pornography Charges
In Virginia, it is illegal to produce, distribute, or possess photos or films that depict minors participating in sexual activities. Possessing, distributing, and producing such materials are all considered acts of child pornography. According to Virginia law, this includes depictions of individuals who are not 18 years or older but who give the impression that they are younger than that age.
Presently the majority of child pornography accusations involve online photos and videos. Law enforcement authorities typically search forums or networking sites for users who are sharing or receiving child porn. The government uses a directory of recognized child pornographic photographs to find anyone who downloads or distributes those images.
Other times, law enforcement officials go "undercover," pretending to be persons looking for child pornographic material or offering their kids for purposes of producing child porn. Charges of production, possession, and distribution, each have different consequences and distinct defenses based on the accusations at hand.
Possession of Child Pornographic Material
Under the Code of Virginia18.2-374.1:1, anybody who deliberately possesses a picture of a minor engaging in an obscene display of sexual conduct, sexual excitement, or nudity is guilty of a class six felony.
Class 6 felonies have a maximum prison sentence of 5 years. Most importantly, possessing additional images is considered a separate crime that falls under class 5, which carries a maximum sentence of ten years behind bars. Anyone found guilty of possessing child pornographic material is required to register themselves in Virginia as a sex offender.
Charges for possessing child pornography can be legally defended in several ways. The prosecution needs to establish beyond a reasonable doubt that the offender had a direct influence over the photos or the gadget on which they were stored, and the offender had knowledge of their possession.
In situations where individuals share a room, for instance, law authorities could be able to track the child pornographic material downloads to the residence, but not certainly to a specific individual.
In other situations, for example, when an internet browser unexpectedly saves images in its memory cache; an individual might not be conscious of the fact they possess child pornography files on their gadgets. A forensic investigation and forensic specialist can assist in demonstrating to a court how these photographs ended up on the individual's gadget without being aware of it.
In addition, Virginia law offers a defense when the pictures are held for a legitimate medical, scientific, judicial, governmental, or law enforcement reason by a psychiatrist, medical practitioner, lawyer, scientist, a staff member of the Virginia DSS, or another local DSS, a staff member of an enforcement agency, a court judge, clerk, and that individual possesses this information in the context of carrying out their professional obligations as such.
If there is substantial proof that a person had child pornography, there are strategies to substantially reduce the likelihood of punishment or even have the case dropped. A defendant, for instance, could be put through a "psychosexual assessment" to demonstrate that they don't have any sexual desires in children and are not likely to reoffend.
Probation can be granted in cases involving having child pornographic material because there's no minimum term for such offenses. Additionally, a conviction for possessing child pornography may be sealed after ten years under the newly enacted Virginia Code section 19.2-392.2.
Another recent law, Virginia Code section 19.2-303.6, permits a judge to impose probation and ultimately dismiss the matter against a person who has been identified as having autism or any other intellectual impairment and the judge determines the crime that was committed was "prompted by a clear and significant connection to the individual's disorder or impairment."
Distributing Child Pornography
The penalties for the distribution, production, or solicitation of another to distribute child pornographic material in violation of § 18.2-374.1:1 are significantly more severe than those for simple possession. The prosecution has to prove that the accused person knew they had been distributing content of children engaging in sexual activity to successfully prosecute them for the distribution of child pornography.
Being convicted for the distribution of child pornography carries an obligatory minimum prison term of five years and a maximum sentence of twenty years. If several pictures are charged, the minimum term for each distribution charge is five years. These sentences have to run concurrently with one another.
Running "an online site for purposes of enabling payments for gaining access to child pornographic material" is considered a class four felony that warrants a sentence of two to ten years behind bars if convicted. Convictions for distributing child pornography can't be concealed under Section 19.2-392.12, unlike convictions for possession.
If the person is accused of distributing child pornographic material, they can prove that they were unaware that they were doing so, particularly if they are utilizing a tool or software that automatically renders the material freely accessible for downloading.
It's a typical characteristic of peer-to-peer platforms, nevertheless, sometimes it can be sufficient to demonstrate an understanding of how such networks operate and that the person understood the materials will be distributed.
Additionally, a person accused of distributing child pornographic material typically has access to the same legal arguments as a person accused of possessing this material.
Production of Child Pornography
According to Virginia Code 18.2-374.1, it is illegal to produce child pornographic material by taking pictures or recording a minor engaging in sexual activity, to lure or ask an underage person to participate in the production of child pornographic material, or to take part in any other activity that results in create child pornography.
Producing child pornographic material is the most severe of these offenses and bears the harshest punishments depending on the ages of the alleged victims. This charge has an obligatory minimum 5-year prison sentence if the child in question is under the age of 15 while the offender is not less than 7 years older than the child. The required minimum sentence is fifteen years if there's a subsequent production.
If there is an age difference of seven years and the child falls between the ages of fifteen and seventeen, the obligatory minimum punishments are three years in prison for the initial offense and ten years in prison for a subsequent offense. Any minimum sentences granted must be served consecutively.
A conviction record for producing child pornography can't be sealed, just like distribution charges. However, there are legal defenses that can be used, especially if an undercover police officer solicited or convinced a person to create or try to create child pornography.
The argument of police entrapment ought to be considered in circumstances where an accused person was offered cash or otherwise lured by an officer since the officer's techniques cannot inappropriately influence somebody to engage in an act they weren't already inclined to do.
Online Solicitation of a Child
According to Virginia Code 18.2-374.3, it's prohibited to expose one's genitals to a child, urge a child to expose their genitalia, urge a minor to engage in sexual activity, or to lure or draw in the minor to a location where one of these acts will take place. In this context, a "minor/child" is defined as an individual who is below the age of 15.
While several of these incidents include an individual talking with a real child online, the majority of these charges typically involve undercover police officers impersonating minors on the internet, usually through chat rooms or by placing an online advertisement. In these "sting operations," the law enforcement officer poses as a child while offering to meet up with the individual for sex. If an individual believes that an undercover agent is a child, they could be found guilty of the crime of online solicitation under Virginia law.
The severity of the punishments for soliciting a minor varies according to the offender's previous criminal record as well as the age of both parties.
In cases where the victims are between the ages of fifteen and eighteen, online solicitation is considered a class 5 offense punishable by a maximum of ten years behind bars. A second offense carries an obligatory minimum prison sentence of one year as well as a statutory 20-year maximum sentence.
The law mandates an obligatory minimum penalty of five years in prison for the initial act of committing this act as well as a minimum obligatory sentence of ten years in prison for an additional offense of infringing this law if the child in question is younger than fifteen and the perpetrator is at least seven years older.
Sealing a conviction under Section 19.2-392.12 is not possible if the required minimum applies. A conviction can nevertheless be concealed under Section 19.2-392.12 even though it fails to charge the crime with the statutory minimum. If you are found guilty of online solicitation of a minor, you must register yourself as a sexual predator.
Comparing Cases of Child Pornography and Other Sex Crimes
Cases involving child pornography can be distinguished from other forms of sex offenses since they are rarely "physical" offenses. Rarely does someone accused of child pornography have direct physical contact with minors. In actuality, the person who commits this criminal act usually hides behind their computers and might not display any obvious signs that indicate a desire to do so. Additionally, offenders hail from different backgrounds— and could be older people, younger people, women, or men.
Also, there is no predetermined set of stereotypes regarding the perpetrators of child pornography or the people who can be charged with this crime. This offense can be perpetrated by individuals of different racial and socioeconomic backgrounds, and all walks of life.
Since it originates from a wide range of social groups and is unanimously detested by society as a whole, child pornography cases are typically aggressively prosecuted.
As a result of the technologically advanced nature that surrounds investigations into child pornography cases, it's crucial to hire a Virginia child pornography attorney who is knowledgeable about all applicable technological advances and how that knowledge could affect how the prosecution's case is carried out when developing defense tactics.
Sexting Charged as Child Pornography
Sexting could, in some instances, be considered child pornography and become a violation under Virginia's child pornography laws, based on the nature of the images sent and the involved parties' ages.
Defenses Against Child Pornography Charges
If you have been accused of a child pornography offense, you need to be aware of a few common defenses.
Unintentional Possession
Unintended possession, commonly referred to as "unintentional possession," serves as a legal defense that can be used to counter allegations of child pornography. It implies that you were unaware that you had child pornographic material, or even that the item in question was not rightfully yours. You might not even have known it existed.
You could be able to use the "unintended possession" argument if pornographic material involving minors is found on a shared computer or one that other people were able to access and you had no knowledge about. For example, this could be the scenario if the computer is utilized for work. Someone else might have acquired the child pornographic material in this instance, and they accuse you of being the owner.
Additionally, you likely downloaded child pornography without realizing it because you were using an unsecured or shared network that enabled another person to download the material.
Child porn could have been downloaded on the computer by an angry partner, ex-partner, ex-lover, or colleague who is seeking to set you up for the offense. This person might inform law enforcement about the existence of the material on the computer. In this scenario, there is a possibility that you will be wrongly accused of possession of child pornography.
Another point that is relevant to this defense is if you bought a secondhand or previously owned computer. If that's the case, you can be eligible to use the unintended possession defense.
A qualified child pornography defense lawyer, with the assistance of a cyber forensics specialist, can help you clear this matter. They can figure out the exact moment when the material was accessed and maybe conclude that it wasn't you that had access to it.
What matters is proving beyond a reasonable doubt that you were not in actual physical possession of any child porn.
Keep in mind, too, that simply admitting to viewing child pornography isn't enough evidence for a guilty verdict. Instead, there must be proof that you actively sought to retain or acquire the child pornographic materials. If your attorney can show that this can't be proven, then you've got a legitimate defense to the charges against you.
Accidental Possession
You are probably aware of how dangerous the Internet could be and how your computer can be corrupted with malware, spam, virus, or other forms of input without you knowing about it or your permission. A hacker can transfer child pornographic material or other prohibited content onto your device without you even realizing it.
Most people's computers hold a large number of files they are unaware even exist. This unintentional possession could provide a legal defense against child pornography charges.
Illegal Search and Seizure
Another viable defense for child pornography is claiming the police carried out an illegal search and seizure against you.
The police sometimes make mistakes in procedures that result in violating citizens' 4th Amendment rights. Evidence obtained illegally by law enforcement can be challenged by your attorney and ruled inadmissible to be used in court. This is valid regardless of whether or not you are guilty of the charges.
In some instances, authorities will fabricate information to obtain a warrant to confiscate computers or any other source containing pornographic material. Alternatively, law enforcement could go beyond the parameters of their search order and access electronic devices or sealed containers not specifically mentioned in the search warrant.
Police Entrapment
A comparable child pornography defense is to assert that you were the victim of police entrapment, in which case the police forced you to engage in a crime that you wouldn't otherwise have. You can claim that if law enforcement hadn't gotten in touch with you and convinced you to carry out the crime, you never would have done it.
The police could also convince someone to buy material that didn't seem to be child pornography or labeled accordingly, and then arrest such people for purchasing child pornographic material. Such entrapment is common when authorities conduct a child pornography sting operation that captures many people—some of whom are usually innocent.
The Material Was Not Child Pornography
Virginia law has very clear definitions of what constitutes "child pornography." For content to be considered child pornographic, it must adhere to those definitions. Typically, it implies that the material must feature scenes of children who are either naked or in sexually suggestive situations.
The material cannot be labeled child pornography if it is established that the people in it are not minors, meaning they are 18 years of age or older. The prosecutor should demonstrate that the persons in the pornographic material were below 18 years.
Additionally, such content cannot be regarded as child pornography if it was being used for religious, educational, or scientific purposes.
Find a Virginia Child Pornography Defense Attorney Near Me
If you are the subject of a child pornography investigation, a child pornography attorney can assist you in many ways. The most crucial step is to get in touch with a defense lawyer as early as possible to understand the charges against you so you can start putting up a solid defense strategy.
At the Virginia Sex Crime Attorney, we know how to defend you against child pornography charges. We are proud to have helped many clients in Virginia with their child pornography charges, and other related offenses. If you or someone you know is facing child pornography charges, call us today at 571-933-8494.
