Cincinnati Child Pornography Lawyer
Almost everyone uses the internet on a regular basis, and most of us are communicating via text messages, social media, instant messaging, or email each and every day. What you may not realize is that you could be a simple click away from a life-changing nightmare involving serious criminal charges.
When you download any materials, including music files, video files, photos, or any other content, you may accidentally download a file containing images or videos that could be considered to be child pornography. You may also unintentionally visit a website without realizing that it would display child pornography. While you may delete a file or navigate away immediately, your browser and file-sharing history will remain, and this is often enough to incite a child pornography case.
Many people who are targeted by child pornography investigations do not realize they did anything wrong until they are arrested and facing federal child pornography charges or Ohio charges of Pandering Obscenity Involving a Minor (Ohio Revised Code § 2907.321). Because these charges are highly stigmatized and considered to be morally reprehensible in our society, the penalties for a conviction are harsh and prosecutors are aggressive.
Start Fighting Your Charges Right Away
Anyone facing child pornography charges faces the possibility of a harsh state or federal prison sentence. Having the right defense lawyer on your side can often mean the difference between returning home and spending years behind bars. Not every defense firm takes on child pornography cases due to the stigma of the charges, but at the Joslyn Law Firm, we help clients facing all types of criminal allegations, including those involving sex crimes and/or children.
Discussing your child pornography charges may seem intimidating, but know that our legal team will never pass judgment. We know that criminal defendants are presumed innocent until they are proven guilty, and we believe in the fundamental principle that everyone deserves a defense.
The Joslyn Law Firm will do everything in our power to uphold your rights and present the strongest possible defense in your specific case. We work for the most favorable outcome possible for every client, no matter what charges they face, so please contact us today to discuss how a Cincinnati child pornography defense lawyer might help.
Ohio Child Pornography Information Center
Child pornography charges are complicated, and many people have misunderstandings regarding the elements and nature of the offense and how authorities prosecute this type of case. The following is additional information about child pornography charges that individuals in Cincinnati may face on either the Ohio state or federal level. For information regarding your specific charges, contact the Joslyn Law Firm directly.
- Overview of Child Pornography Laws
- How Cultural Stigma Affects Child Pornography Cases
- Specialized Authorities Assigned to Child Pornography Cases
- Child Pornography Investigations
- Federal or State Child Pornography Charges
- Ohio Pandering in the Obscenities of a Minor Statute
- Ohio Elements of Pandering of Obscenities Charges
- Federal Child Pornography Statute
- Federal Elements of Child Pornography Charges
- Child Pornography Charges from Sexting
- Some Examples of Child Pornography Offenses
- Potential Penalties for Child Pornography
- Collateral Consequences of Child Pornography Convictions
- Common Child Pornography Defenses
- Common Evidence in Child Pornography Cases
- How Experts Help in Child Pornography cases
- Questions and Answers about Child Pornography Cases
- Child Pornography Resources
- Child Pornography News in Cincinnati and Ohio
Overview of Child Pornography Laws
The History of Child Pornography Laws in the United States
In the 1970s, the United States Congress passed the Protection of Children Against Sexual Exploitation Act of 1977 (Protection of Children Against Sexual Exploitation Act, Pub. L. No. 95–225, 92 Stat. 7 § 2 (1978) (codified at 34 18 U.S.C. §§ 2251-2253). This was the first major law to target the creation, possession, and distribution of child pornography. Congress had found that children suffered severe psychological, physiological, and emotional harm from obscene depictions in any form, so the government began seeking to punish individuals and groups that disseminated or received such obscene depictions of children.
In hopes of reducing child pornography and protecting the interests of children, Congress continued to pass stricter laws over the course of the next couple of decades. These laws set out sentencing guidelines with higher mandatory minimum prison sentences for offenders, as well as greater protections for victims. These laws were surprisingly effective in substantially reducing child pornography trafficking and distribution among pedophiles.
In 1990, the Supreme Court of the United States (SCOTUS) held in Osborne v. Ohio, 495 U.S. 103 (1990) that the creation and possession of child pornography were not protected under the right to free speech under the First Amendment to the U.S. Constitution. This ruling led to even more stringent laws in an effort to prevent damage and abuse to children. Specifically, Congress passed the Child Pornography Prevention Act in 1996 and the PROTECT Act of 2003 (“Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”). These laws promoted the active investigation and prosecution of all types of violent child-related crimes, including child pornography.
Over the years, as the consensus recognized that child pornography was morally reprehensible and harmful to children, federal laws and sentencing guidelines have become stricter, and the states passed their own laws criminalizing child pornography.
The Internet Influence
The rise of the internet and digital technology made it substantially easier for people to create, share, or obtain child pornography. The internet provides many forums for pedophiles to interact and participate in the sexual exploitation of minors, including via email, social media, peer-to-peer networking, newsfeeds, instant messaging, and more. The ease of exchanging child pornography has led to a sharp increase in the offense, especially since online communication largely desensitizes the harm that child pornography may cause.
With a 2500 percent in child pornography-related arrests and charges in the past ten years, the FBI and other agencies consider it to be one of the fastest-growing criminal offenses across the U.S. and around the world. As people are engaging in unlawful child pornography-related acts more and more, the authorities are cracking down on this type of offense more and more. The possibility of facing child pornography charges has increased substantially, whether those charges are valid or not.
How Cultural Stigma Affects Child Pornography Cases
A major part of every child pornography case is the widespread cultural stigma attached to all child pornography-related acts and offenses. Not only does public outrage regarding obscene depictions involving children affect individual offenders, but it also drives the proposals and passage of continually harsher laws against this type of conduct.
Unfortunately, due to the nature of the internet, many people become unknowingly involved with child pornography. The use of file-sharing programs for videos or music can often result in someone unintentionally downloading child pornography. With the heightened online monitoring and surveillance by law enforcement agencies to seek out child pornography offenders, it is all too easy for someone to be accused of child pornography when they had no intention of downloading that type of file.
The problem is that the cultural stigma has led to the prosecution of offenders focused on obtaining a conviction at any cost. Once authorities find files on your computer, they automatically presume you are guilty of child pornography, even though our justice system should be built upon a presumption of innocence until you are found guilty in court. The public sentiment toward this type of crime often results in an immediate bias among law enforcement and prosecutors against child pornography arrestees and defendants, which can make defending against these charges a difficult task.
For the above reasons, it is absolutely essential that anyone arrested on suspicion of child pornography crimes get help from a highly qualified criminal defense lawyer right away. You want immediate legal assistance, as even an arrest or charge – without a conviction – can damage your reputation and your future. The cultural stigma regarding child pornography offenses makes this one of the most challenging criminal cases possible, and anyone who is targeted by law enforcement needs the intervention of a skilled Cincinnati criminal defense lawyer who knows how to approach this type of case.
At the Joslyn Law Firm, we do not shy away from the toughest cases, including child pornography charges. Contact the firm right away if you are under investigation, arrested, or charged at the federal or state level.
Specialized Authorities Assigned to Child Pornography Cases
Authorities and law enforcement agencies at the local, state, and federal levels are all committed to pursuing child pornography cases more intensely than many other types of offenses. In fact, some counties have special law enforcement units and prosecutors assigned solely to child pornography and related cases.
First, the Department of Justice (DOJ) has a special Child Exploitation and Obscenity Section (CEOS) of the U.S. Attorney’s Office, which has its own High Technology Investigative Unit (HTIU) that is largely focused on child pornography identification and prosecution.
For state offenses, Hamilton County Sheriff’s Office has a Regional Electronics and Computer Investigations Unit (RECI), which dedicates itself to investigating and prosecuting computer crimes. This unit conducts surveillance and other operations to catch child pornography offenders, and RECI also assists local law enforcement agencies with their own investigations and prosecutions.
The Hamilton County Prosecutor’s Office also has a division devoted to working with child victims of crimes. This division seeks to help children through the process of testifying in a criminal case, especially when the case involves sensitive and harmful acts, such as child pornography.
Special divisions have resources committed to taking down offenders, and accused individuals need their own trusted legal teams, as well.
Child Pornography Investigations
The authorities do not simply wait for child pornography offenders to fall into their laps. Instead, many different law enforcement agencies at every level engage in proactive operations and investigations to catch individuals trying to exploit children. Sometimes, an investigation targets an individual based on a “tip” or information from an anonymous source. In other situations, arrests stem from sting operations intended to identify previously unknown offenders or groups involved in child pornography. Agencies also regularly monitor chat rooms and other forums for any leads on who to investigate.
Investigations by Local Police Agencies
Local law enforcement agencies may have investigators that monitor certain websites known for being associated with child pornography, and then, officers may begin to investigate individuals who regularly visit or are active on those websites. The investigation may target a single person or additional people suspected of acting together to engage in a variety of child pornography crimes.
Federal Investigations
Many different federal agencies work to expose and prosecute child pornography offenders. Some agencies that may launch or participate in investigations include the following:
- Federal Bureau of Investigation (FBI)
- Department of Homeland Security (DHS)
- United States Postal Inspection Service
- The DOJ’s Internet Crimes Against Children Task Force, which collaborates with federal, state, and local agencies
When a situation seems particularly complex or if it involves conduct that crosses state lines, local or state agencies may contact authorities at the federal level. Federal agencies may then take over an investigation or work together with local investigators.
FBI and DHS investigators are largely focused on investigating and taking down child pornography “rings” on the national or international levels. These investigations are highly complex and can last a long time before arrests are made. Often, a successful investigation of this magnitude will result in many arrests and many different types of criminal charges in addition to child pornography.
Agencies at all levels of law enforcement dedicate substantial resources to protecting children, which means these resources often go toward extensive and complicated child pornography investigations.
How Can You Tell if You are Under Investigation?
Because investigations generally start with online surveillance, many people have no idea that they are under criminal investigation until the police bang on their doors. In this situation, the authorities should show you their search warrant, which they likely obtained based on information gathered from internet monitoring activities. If the police have a warrant, you should let them in, as they have the legal right to search your home or business in accordance with the warrant.
The warrant will specify what the police are allowed to search, which normally includes computers, laptops, tablets, smartphones, external hard drives, flash drives, SD cards, and any other electronic devices that might have files or transmissions of files of child pornography. The police can seize anything within the scope of the warrant for a more in-depth search. In fact, this is what usually happens in this type of case, as agencies have special units dedicated to technological searches.
Many people might believe that deleting files will eliminate incriminating evidence from a computer or another electronic device. However, forensic tech analysts can dig deep into your device’s hidden space and recover files that you may have thought were gone forever. Generally speaking, if there is any incriminating information on your devices, the authorities will likely discover it.
Call a Lawyer Immediately if Police are Conducting a Search
Police officers regularly exceed the scope of a warrant or otherwise engage in unlawful searches and seizures. If this happens, there is little you can do to avoid an arrest in the moment. However, it is critical to remember that the right defense attorney can determine whether the police violated your 4th Amendment rights. If they did, your lawyer can work to exclude any evidence that was obtained in violation of your rights so the prosecutor cannot use it against you. If an entire search was illegal, then any files or correspondence discovered might be kept out of the case, and the prosecutor may not have additional evidence with which to convict you.
While you do have to allow the police to search your property, you do NOT have to say ANYTHING while they do so, and you should never agree to answer their questions. Even if you know you are completely innocent, even the slightest comment may be twisted around to use against you and try to prove your guilt. Instead, you should IMMEDIATELY call a criminal defense lawyer you can trust at the Joslyn Law Firm.
The Joslyn Law Firm can begin your defense representation right away, even during the investigation stage. We will advise you of all of your rights (including the very important right to remain silent), and we will communicate with state or federal investigators to discuss whether criminal charges are appropriate. If charges are issued, we can help you navigate the process to prevent any unnecessary time in jail due to an arrest warrant.
The earlier an experienced Cincinnati criminal defense lawyer gets involved in a child pornography case, the better. We can help to minimize the media coverage of the case, conduct our own investigation, and begin building the strongest possible defense. If we are involved early in the process, we can work to resolve the case as fast as possible, which can help to minimize the impact on your life. However, even if you are already facing charges, we can step in and begin protecting your rights, so please do not hesitate to call the Joslyn Law Firm at any time.
Federal or State Child Pornography Charges?
There are no clear lines for whether the federal or state criminal courts will oversee a child pornography case. As previously discussed, both federal and state authorities may get involved in a child pornography investigation, and the results of an investigation can make their way onto either a federal or state prosecutor’s desk. Generally speaking, if the FBI or DHS get involved in the investigation, the case will continue at the federal level. If the investigation stays within local or state agencies, the Hamilton County Prosecutor’s Office may issue the charges for a Cincinnati-based case.
However, even if the FBI contributes to an investigation, the federal prosecutor may decline the case, and the state may issue its own charges. On the other hand, the federal government may learn of a state-issued case and may take it over. Again, there is not a distinct measure of when a child pornography case will proceed at the state or federal level, so you want a criminal defense lawyer who has experience defending clients in both state and federal court.
Ohio Pandering in the Obscenities of a Minor Statute
Criminal statutes can be confusing with detailed and complicated elements and definitions. In order to build a strong defense, you must fully understand the law and how the evidence in your specific case fits in with the statute. This is one of many reasons why it is critical to have an experienced defense attorney who fully comprehends each element of the state criminal statute that applies in your case.
In Ohio, child pornography is charged as “Pandering in the Obscenities of a Minor” (§2907.321) and the law provides:
- A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
(1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers;
(2) Promote or advertise for sale or dissemination; sell, deliver, disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, disseminate, display, exhibit, present, rent, or provide, any obscene material that has a minor as one of its participants or portrayed observers;
(3) Create, direct, or produce an obscene performance that has a minor as one of its participants;
(4) Advertise or promote for presentation, present, or participate in presenting an obscene performance that has a minor as one of its participants;
(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants;
(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.
(B)
(1) This section does not apply to any material or performance that is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.
(2) Mistake of age is not a defense to a charge under this section.
(3) In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.
(C) Whoever violates this section is guilty of pandering obscenity involving a minor. Violation of division (A)(1), (2), (3), (4), or (6) of this section is a felony of the second degree. Violation of division (A)(5) of this section is a felony of the fourth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this section or section 2907.322 or 2907.323 of the Revised Code, pandering obscenity involving a minor in violation of division (A)(5) of this section is a felony of the third degree
Criminal statutes use terms that are carefully defined under the law, and it is necessary to know the exact definitions to understand how the prosecutor may or may not prove a case, and how to challenge the prosecutor’s evidence. The Pandering in the Obscenities of a Minor statute includes the following important terms:
“Knowledge” – The law requires that a person must have knowledge of the character and nature of the material at the time of the crime to be found guilty of this offense. This is a critical detail, as many people receive CDs or flash drives or download files from others without realizing what the drive or files contain. If a file had a song title as a label and a person shared the file based on the labeling, they would have no knowledge that they were actually sharing a file containing child pornography. This would not satisfy the “knowledge” requirement for a conviction.
“Minor” – The law simply states that a minor is an individual under the age of 18. This is important because it can be difficult to know whether the individual depicted in an image or video is under 18 in some situations (in other situations, it may be obvious they are a minor). The prosecutor may use titles or descriptions to try to prove the individual’s age, though if the prosecutor cannot prove the person was a minor beyond a reasonable doubt, they should not secure a conviction for child pornography.
“Obscene material” – Depictions are considered to be “obscene” under the law when they portray sexual conduct that would blatantly offend a reasonable person. Generally speaking, child pornography is considered obscene because it depicts a minor involved in sexual conduct, which is considered objectively offensive in our society. However, the content may not be obscene if it serves a valuable artistic, scientific, or political purpose.
Ohio Elements of Pandering of Obscenities Charges
Along with the definitions of legal terms, it is also necessary to understand the specific elements of each different offense related to child pornography. The prosecution is required to prove every element beyond a reasonable doubt and, if they cannot, you should be acquitted. Your defense lawyer will work to challenge the prosecutor’s case so they cannot prove each element as needed.
Possession of Child Pornography
- Knowing and intentional
- Keeping and storing obscene material
- That involves a minor
Production of Child Pornography
- Knowing and intentional
- Encouraging, fostering, or coercing a minor to participate in a depiction
- That involves a sexual act or the simulation of a sexual act
Distribution of Child Pornography
- Intentionally
- Selling, transferring, or disseminating
- Sexual material involving minors
It is important to note that every child pornography charge requires the intent to commit the crime. People who unknowingly possess or share a file should not be convicted since they did not intentionally engage in child pornography. Prosecutors can use many types of evidence to try to prove intent, though it is impossible to get into a person’s mind at the time of the conduct. This is often an opportunity to challenge the case against you.
Federal Child Pornography Statute
The federal statute (18 U.S.C. § 2251) provides its own outline and description of child pornography offenses. If you are facing federal charges, your attorney should have a thorough understanding of the elements of each offense. Generally speaking, there are two types of cases at the federal level:
- Against defendants accused of child pornography production offenses
- Against defendants accused of child pornography collection and distribution, but not production
The law provides:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(c)
(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection
(2)The circumstance referred to in paragraph (1) is that—
(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or
(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail.
(d)
(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering—
(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct;
shall be punished as provided under subsection (e).
(2)The circumstance referred to in paragraph (1) is that—
(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.
(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.
As you can see, the statute is dense and contains a substantial amount of information regarding these charges. The right federal defense lawyer will be able to decipher the statute and skillfully apply it to your case.
Federal Elements of Child Pornography Charges
Because the internet is now the primary tool for downloading, posting, or sharing child pornography, the transmissions and communications usually cross state lines, automatically allowing federal jurisdiction. The elements of the federal child pornography charge are similar to state charges, including:
- Knowing conduct (possessing, accessing, producing, or distributing)
- Sexually-explicit materials
- Involving a minor
Federal prosecutors must also prove each element of a specific offense beyond a reasonable doubt in order to secure a conviction.
Child Pornography Charges from Sexting
The term “sexting” has become so widely used that it was officially added to the Merriam-Webster Collegiate Dictionary in 2012. Sexting refers to exchanging texts or other digital messages that include sexually explicit images of a party. This often happens between adults who are hoping to be in a romantic relationship or who are already. In general, sexting is not against the law.
However, it is a completely different matter when sexting involves sexual images of minors. For example, imagine the following scenario:
- An adult begins communicating with a16-year-old in a chatroom
- The adult requests a sext from the minor, and the minor complies
- The adult then possesses child pornography and, if they forward the text to anyone or upload it to the internet, they are distributing child pornography
This is only one example of how sexting can lead to severe child pornography charges.
You might be surprised to learn that even juveniles can face child pornography charges as a result of sexting each other. There is also a wide range of associated charges that can stem from sexting for both adults and minors, including:
- Illegal Use of a Minor in Nudity-Oriented Material
- Child Endangerment
- Disseminating Matter Harmful to Juveniles
- Harassment and Bullying
You want an attorney who can represent defendants of any age facing child pornography charges as a result of sexting, as well as who can defend against any additional charges you may face.
Some Examples of Child Pornography
Child pornography can come in many forms, all of which can lead to criminal charges. The following are some types of conduct that constitute the crime of child pornography:
- Downloading videos or images
- Uploading videos or images
- Sharing videos or images online
- Possessing video or image files on a smartphone, tablet, computer, or external drive;
- Sending video or image files through email, text messages, or other types of instant and online messaging
- Soliciting, encouraging, or coercing minors to participate in the production of child pornography, including via online chatrooms
- Using online communications to arrange meetings with a minor to engage in child pornography and traveling to the planned location
Potential Penalties for Child Pornography
State Penalties
In Ohio, child pornography crimes are always felony offenses, but they can be charged in different ways, with different potential penalties for each type of charge. The charges will depend on the conduct involved, whether you have prior convictions on your record, and other factors. Some possible charges and penalties at the Ohio state level include:
- Second-degree felony – $15,00 fine and up to eight years in state prison
- Third-degree felony – $10,000 fine and up to five years in state prison
- Fourth-degree felony – $5,000 fine and up to 18 months in state prison
Many child pornography cases involve multiple counts, each of which can come with the maximum penalty above.
Federal Penalties
Federal law assigns maximum prison sentences like state laws, but the Federal Sentencing Guidelines also often set out mandatory minimum prison sentences for various offenses, including child pornography. Some example of minimum and maximum imprisonment for first-time offenders include:
- Producing child pornography – Mandatory minimum of 15 years and up to 30 years of imprisonment
- Interstate transportation of child pornography (including via internet communications) – Mandatory minimum of five years and up to 20 years of imprisonment.
Penalties can become harsher when any of the following circumstances apply:
- The offender has prior convictions for child pornography
- The offender has prior convictions for child sexual exploitation
- The images were sadistic, masochistic, or violent in nature
- The minor involved was sexually abused
No matter what the specific details of your case and charges may be, there is still a risk that you can face many years in federal prison if you do not mount the necessary defense to your charges.
Collateral Consequences of Child Pornography Convictions
While court-ordered penalties such as costly fines and imprisonment are of immediate concern for people facing child pornography charges, it is also important to consider the many possible long-term consequences that may last long after you complete a prison sentence or probation. These collateral consequences can affect your entire quality of life – often, for the rest of your life.
Some consequences will stem from simply having a felony conviction on your criminal record, regardless of whether the conviction is related to child pornography or not. Felony offenders often face serious challenges, including:
- Difficulty finding gainful employment, as many companies run criminal background checks and do not hire felony offenders
- Difficulty finding housing to rent, as many landlords will not lease their properties to people with a serious criminal background
- Ineligibility for higher educational programs
- Denial or revocation of a professional license, including for law, accounting, medicine, teaching, and more
- Denial or revocation of a security clearance
- Dishonorable discharge from the military
- Impact on immigration status, including removal or deportation proceedings, as well as future visa or green card denials
- Inability to possess or purchase firearms
The above can apply to anyone with any type of felony convictions. In addition, some collateral consequences apply specifically to offenders of child pornography and other sex crimes involving children. These include:
- Sex offender registration, which publicly publishes your name, address, convictions, and other personal information that will be available to anyone via an internet search
- Losing your child custody and visitation rights, which can permanently affect your long-term relationship with your children
- Possible restrictions on where you can live, such as not living within a certain distance of schools or parks
- Disqualification from many types of jobs and professions, including any type of teaching or caregiving role involving children
Many people must live with these challenges for years after their release from prison or probation, and this can result in ongoing and long-term financial and emotional stress.
When deciding which criminal defense attorney to hire, you should consider the possible collateral consequences as well as court-imposed sentences.
Common Child Pornography Defenses
Because of the exceedingly harsh and lasting consequences of a child pornography conviction, it is necessary to mount a strong defense against your charges. You can be sure that the prosecutor will aggressively pursue a conviction, so you need to aggressively defend yourself. You need the assistance of a highly experienced criminal defense lawyer as soon as possible who can begin crafting the right defense for your case.
Every criminal case is unique with its own allegations and circumstances, so the defenses available in one case may vary significantly from another involving the same charges. The Joslyn Law Firm approaches each case independently to identify all possible defenses that may help to fight against your charges. We never assume that the outcome of any case is predetermined, so you can trust we will do everything in our power to find ways to challenge the allegations against you.
Some potential defenses in child pornography cases include the following:
Violations of Your Fourth Amendment Rights
The Fourth Amendment to the U.S. Constitution protects you from unreasonable search and seizure by the authorities. If police officers search your property or electronics without a proper and valid warrant and seize evidence, that evidence was illegally obtained. Our attorneys can show that the police officers discovered the evidence in violation of your rights and request that the court suppress that evidence, which means the prosecutor cannot use it against you.
Entrapment
Many child pornography arrests occur as a result of “sting operations” by the police. These operations involve officers going undercover to try to identify offenders and gather evidence of illegal activity. However, undercover officers are not allowed to coerce anyone into committing a crime or convince someone to engage in conduct they otherwise would not have. If an undercover officer used deception to get you involved with child pornography or kept pushing your involvement despite initial refusals, it may constitute illegal entrapment.
You Did Not Possess the Illegal Material
Briefly viewing or seeing an image or video involving a minor does not meet all of the elements of possession. If you saw an image or video and took no additional steps to save the files or possess them for the future, you should not be convicted.
The Possession was Accidental
When you accidentally download the wrong file or mistake a file for something else without opening it, your conduct does not meet the “knowing and intentional” requirement for a conviction. Proving that you did not know you possessed a file or what the file contained is a common defense.
Someone Else is Responsible
While it seems like many criminal defendants may claim “it wasn’t me!” and point fingers at someone else, this is a viable defense in many situations involving child pornography. Many people share computers and devices with roommates or others in their household who may be responsible for downloading or sharing files. This may also happen if you share a network with others who may access and possess illegal files. It is often possible for your attorney to show time-stamps and other user tracking to demonstrate that you were not the one responsible for the offense.
Computer Viruses
People design many different types of computer viruses or “Trojan horses” that can plant material on your computer to force you to download or even view it. Some people never realize the virus put files on their computers, while others may delete the files and forget about them. Unfortunately, as mentioned, deleted files can still be found by forensic specialists, though you have a defense if a virus was to blame.
The Material was Not Child Pornography
Some defenses involve showing that the images or videos were not sexual in nature or that it was “presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance” (ORC 2907.321 (B)).
The Material Did Not Involve a Minor
Many people may think that assuming someone in a video or image is 18 years old is a relatively straightforward defense. Unfortunately, mistake of age is NOT a valid defense to child pornography crimes. Instead, the defense strategy would be to demonstrate that the person was ACTUALLY 18 years of age or older – or to challenge the prosecutor’s evidence that they were a minor.
Insufficiency of the Evidence
A prosecutor must prove every element of a crime beyond a reasonable doubt, which is the highest legal standard in any type of court case in the United States. It requires substantial evidence to eliminate reasonable doubts from a jury’s mind, and a common defense strategy is to challenge the sufficiency of the prosecutor’s evidence. For example, a skilled defense lawyer can call the reliability of evidence into question, combat evidence directly with contrary evidence, or question the probability of circumstantial evidence. If the prosecutor lacks the evidence to meet the required burden of proof, the case should be dropped or should end in acquittal.
In many cases, one or more of the above defenses can be successful and may result in the court dropping your charges, the prosecutor deciding not to continue to pursue charges, or a jury’s finding of not guilty at trial. However, some cases may not have strong and persuasive defenses available that result in a dismissal or an acquittal. Even if this is the situation in your case, you should still have the assistance of an experienced criminal defense lawyer for many reasons.
The Joslyn Law Firm can take many approaches to ensure that you receive the best possible outcome in your case. If your charges are not going to be dropped, we can explore many ways to reduce your charges or sentence.
Plea Bargaining
Sometimes, it is in a defendant’s best interest to plead guilty instead of continuing to fight charges at trial. We will always carefully discuss all of your options and the many possible implications of a guilty plea to help you make this decision. Our attorneys are also skilled negotiators who will discuss your case with the prosecutor and work for an agreement in exchange for a guilty plea. This often involves a lesser recommended sentence, striking certain charges, and other compromises. Often, for first offenders, a plea agreement might work to avoid time in prison.
It is important to remember that prosecutors will not negotiate with defendants directly. If you plead guilty on your own without defense representation, you will likely receive a harsh sentence with little to no leniency or compromise. You need the right child pornography defense lawyer handling your plea negotiations, as we can present mitigating factors and other arguments to reach the most favorable plea bargain possible.
Common Evidence in Child Pornography Cases
Evidence used by prosecutors to prove child pornography charges will vary significantly from case to case. Your defense attorney must be flexible and knowledgeable enough to be able to challenge many different types of evidence, which can be highly technical.
Often, the primary evidence will be files or communications found on a defendant’s electronic devices. These files are often located by forensic analysts who specialize in technological evidence. It is important for your lawyer to ensure that all evidence comes with a clear explanation of how it was discovered and proof that it is from your devices. The forensic analysts should testify regarding how they discovered the evidence.
Evidence can also include emails or messages that involve a discussion of file-sharing or other distribution of child pornography. Such messages help the prosecutor show that you knew about the nature of the materials and that you intended to possess or share it with others.
Witnesses may also testify in child pornography cases, including the child who was involved (if the charges involve production of the materials). Child witnesses can be particularly sensitive and difficult, so you need a skilled defense litigator on your side.
Keep in mind that the prosecutor is not the only one who can present evidence to the judge or jury, as your defense should involve physical evidence and witness testimony as needed. While evidence may vary, all of it must comply with the Rules of Evidence to be admissible against you. A significant part of a defense lawyer’s job is determining which evidence may be excluded from a case, especially evidence that was obtained illegally or that is unreliable.
How Experts Help in Child Pornography cases
Prosecutors often enlist the help of experts in child pornography cases, and your lawyer may put an expert on the witness stand, as well. Technological experts can review electronic devices, networks, communications, and more, and may answer many questions, such as:
- What files or material was on the device?
- Was the illegal material embedded in other files or on its own?
- Did someone try to delete the files?
- Where were the files stored? Were they on the device itself or transferred to an external hard drive?
- When were the files downloaded and from where?
- Which user downloaded or uploaded the files?
- What was the path of the material, such as from chat rooms, via text or email, over Skype, or through peer-to-peer file-sharing networks?
- What was included in the browser history and cache?
- Were the files located in unallocated space and, therefore, not viewable by the defendant (who may not even have known that the illicit material was there? This issue was addressed in United States v. Flyer (February 2011).
Technological, psychological, and other expert witnesses for the defense can help complete the following tasks and testify regarding their findings:
- Trace the steps of the prosecutor’s expert to make sure their findings are accurate and complete.
- Determine whether all forensic analysis was properly conducted with accurate results.
- Testify regarding internet histories, file-sharing, link results, viruses, automatic downloads, search results, and more.
- Analyze the mental state of the defendant and whether they had a propensity for the crime.
- Evaluate polygraphs or answers during police questioning.
There are specific rules of evidence regarding expert witness testimony, and it is critical that your defense lawyer understand and comply with the rules, as well as identify when to object to the expert testimony for the prosecution.
Questions and Answers about Child Pornography Cases
What exactly constitutes child pornography?
The law defines child pornography as the sexual exploitation of minor children (under age 18) by producing, distributing, or possessing obscene and sexually explicit depictions of the minors. It can take the form of images or videos, and the material does not serve a valid purpose for medical purposes or other reasons. The depictions do not have to show actual sexual conduct, as even the simulation of sex acts of minor qualifies as child pornography. Child pornography can lead to many criminal charges on both the federal and state levels.
What does pandering in the obscenities of a minor mean?
This is the name that Ohio law gives to its primary child pornography statute and offense. The law criminalizes the possession, distribution, and production of any sexually explicit depictions of minors, as long as the defendant did so knowingly and intentionally.
What is the dissemination of matter harmful to minors mean?
This is another type of criminal charge in Ohio related to child pornography. This charge refers to the circulations, sharing, or distribution of materials that contain explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, when taken as a whole, is harmful to individuals under the age of 18.
How do the authorities catch suspects for child pornography?
Many different federal, state, and local law enforcement agencies work to stop the spreading of child pornography and prosecute offenders. Some agencies have substantial resources dedicated to these efforts, which can result in intricate and ongoing investigations. Some investigations involve monitoring and surveilling chat rooms and forums that may attract child pornography offenders for signs of illegal activity. Authorities can also trace downloads and file-sharing activity to specific IP addresses. Some agencies have officers go undercover to try to identify possible offenders online. When investigators have enough evidence to support a search warrant, they will usually show up at a suspect’s home or office and search or seize their electronic devices, including computers, phones, tablets, external storage, and more. Forensic analysts can perform a deep search of devices to find illegal files containing child pornography.
Can child pornography charges apply if I did not create or share the images?
While the production and distribution of child pornography can lead to severe criminal charges, merely possessing a single file depicting illegal sexual material with minors is definitely enough to result in a charge for the possession of child pornography.
What happens if I had a file but immediately deleted it?
Some people may download a file containing child pornography and may delete it soon after. They may believe that deleting the file will prevent any criminal repercussions for ever possessing the file. Unfortunately, forensic experts know how to delve into parts of your computer’s memory to find deleted files. If authorities traced a download to your IP address, chances are good that the law enforcement tech experts will find the file you thought you had erased.
What if I accidentally received a child pornography file?
Viruses, roommates, or simple file-sharing mistakes can often lead to a download of illegal files. The law requires that offenders knowingly and intentionally possessed or shared child pornography, so charges should not apply if the possession was accidental and unintentional. However, proving that it was accidental is quite another story, and it can be challenging. You need a highly skilled child pornography criminal defense lawyer working on your case immediately.
What determines whether federal or state authorities will file child pornography charges?
Because there are both federal and state laws against child pornography, defendants can face charges in federal criminal court, Ohio state criminal court (such as in Hamilton County), or even both. There is not a set rule for when a particular court will have jurisdiction over this type of case. Often, it depends on what type of agency conducted the investigation and submitted the case for prosecution. For example, if the Cincinnati police handled the entire investigation themselves and made the arrest, the case will likely be kept at the state level in Hamilton County. On the other hand, if the FBI was in charge of an interstate investigation of child pornography distribution, the U.S. Attorney’s Office will likely issue federal charges. In some cases, numerous agencies work together, so different factors will determine the type of charge, such as the severity of the conduct or the scope of the criminal scheme.
What is the difference between a federal child pornography case and a state case?
While both the federal and state criminal justice systems have the same goals, constitutional protections, and burdens of proof, there are many differences between the two. First and foremost, the penalties can be significantly more severe in federal court. This is for two reasons – first, federal prosecutors often handle more serious cases than state courts. This inherently means the penalties for the offenses will be harsher. Furthermore, federal law sets out sentencing guidelines for judges that impose mandatory minimum prison sentences. In state court, a judge often has the discretion to sentence you to probation instead of imprisonment. With the federal mandatory minimums, it is almost a guarantee you will spend time in prison if you are convicted.
In general, federal criminal courts follow different procedures than state courts. You want a defense lawyer who is highly experienced practicing in federal court if you are facing federal child pornography charges.
Is it possible to defend against child pornography charges?
When you are arrested and the authorities find files on your laptop or another device, the situation may seem hopeless. You may wonder if it is even worth it to hire a criminal defense lawyer since the chips seem stacked against you. Always know that it is absolutely critical to have the right defense representation, especially when you are facing serious felony charges.
There are many legal defenses that are difficult to identify unless you are thoroughly familiar with the law and the nuances of this type of case. Our defense team works hard to build the strongest defense in every case we take on, and we work to exclude evidence, present affirmative defenses, and challenge the prosecutor’s evidence at every turn. Even if you know you are guilty and you plan to plead guilty to your charges, a lawyer can often negotiate a reduced charge or sentence in exchange for your guilty plea. This is something that defendants cannot do on their own.
What penalties will I face for a child pornography conviction?
Child pornography is a felony offense whether the charges involve the production, distribution, or possession of illegal materials. The degree of felony charge and the maximum penalties you face will depend on many factors, such as:
- The nature of the conduct
- The nature of the depictions and materials (e.g., whether they involved violence or sexual abuse)
- Whether you have previous child pornography convictions on your record
- Whether you have past convictions involving minors and sexual conduct
- Whether you were already on probation or registered as a sex offender
- Any other aggravating or mitigating factors that apply to your case
Even in the best possible scenario, the possible penalties are still extremely serious. You can face years in prison and costly fines. An attorney may be able to get you probation instead of imprisonment for state charges, though probation still comes with strict conditions and costs. It is important to you explore with your attorney every possibility to fight a conviction when possible.
Does a child pornography conviction mean I will have to register as a sex offender?
Yes. The law requires everyone convicted of possessing or distributing child pornography to register as a sex offender with the state police. This means that your information – including your name, photo, offenses, address, employment, and more – will be accessible to anyone performing an internet search. Sex offender registry can affect your employment and your personal relationships and reputation, so you want to avoid a conviction for child pornography whenever possible.
Child Pornography Resources
Citizen’s Guide to U.S. Federal Law on Child Pornography – This information is presented by the Department of Justice, and it provides an overview of the laws that may lead to federal child pornography charges. This resource explains the nature of child pornography offenses, possible penalties, and much more.
Federal Child Pornography Information – Another site by the DOJ explains the nature of child pornography, how it has evolved over time, the impact of child pornography on victims, and methods used by offenders to evade law enforcement. This resource also gives information about the role of the Child Exploitation and Obscenity Section (CEOS) of the DOJ, along with how CEOS collaborates with other groups to stop child pornography, such as the High Technology Investigative Unit (HTIU), the Federal Bureau of Investigation (FBI), United States Attorney´s Offices throughout the country, and the National Center for Missing & Exploited Children (NCMEC).
Crimes Against Children in the U.S. – The federal government includes information about child pornography on its site discussing crimes against children, and it also provides a way to report suspected child pornography offenders.
Growing Judicial Rebellion Against Harsh Sentences for Child Pornography Offenses – This is a scholarly article by Senator Arlen Specter and Linda Dale Hoffa that explains the challenges in current child pornography sentencing procedures and discusses whether the laws need to be changed. The article was published in October of 2011 by The Champion, a monthly publication of the National Association of Criminal Defense Lawyers (NACDL)
The United States Sentencing Commission and it explores USSG §2G2.2, the current guideline for non-production child production offenses, such as the receipt, possession, transportation, and distribution of child pornography, and discusses how offenders who reenter the community are prosecuted, sentenced, incarcerated, and supervised. The site also reveals the effects of the crime of child pornography, along with the Commissions’ effort to revise the penalty structure for distribution offenses and amending notice and restitution statutes for victims of child pornography.
Financial Coalition Against Child Pornography – This is a coalition made up of at least 34 leading financial institutions, electronic payment networks, and internet services companies that work together toward effectively ending commercial child pornography.
Internet Watch Foundation (IWF) — This is a website that allows you to anonymously and confidentially report suspected child sexual abuse content, non-photographic child sex abuse images, or even criminally obscene adult content.
Internet Crimes Against Children Task Force (ICAC) – ICAC is a national network of 61 coordinated task forces, involving more than 3,500 federal, state, and local law enforcement agencies and prosecuting offices that work to investigate and prosecute people involved in child abuse and exploitation using the internet.
Virtual Legality: An Overview of Your Rights and Responsibilities in Cyberspace – Here is an article that discusses the rights and limitations of internet users, including users in a university or college setting, and that analyzes the relevant copyright laws and definitions of libel, invasion of privacy, obscenity, child pornography, and “indecency,” and hacking.
Child Pornography News in Cincinnati and Ohio
Cincinnati High School Teacher Charged with Child Pornography – A 39-year-old teacher at Walnut Hills High School was arrested by the Cincinnati/Northern Kentucky International Airport Police and getting extradited back to Hamilton County, Ohio. He faces multiple felony charges, including three counts of pandering obscenity involving a minor and two counts of disseminating matter harmful to a juvenile.
$1 Million Bond Set in Hamilton County Child Pornography Case – A Hamilton County criminal judge set a $1 million bond for a man facing 10 counts of child pornography. A minor female saw a cell phone under the wall of her dressing room in Old Navy, which led to the arrest and discovery of numerous child pornography images on the defendant’s phone.
Corrections Officer Heading to Jail for Child Pornography – A corrections officer for the Hamilton County Jail is now heading to jail for a child pornography conviction. The Ohio Bureau of Criminal Investigation successfully tracked a child pornography download the offender’s IP address, and he admitted to the download to investigators.
Man Faces 50 Child Pornography Counts in Ohio – A man in Warren County, Ohio faces about 50 different counts of child pornography crimes after allegations that he downloaded more than 200 videos with illegal material. Authorities claimed that some videos were particularly disturbing and involved sexual violence against a 12 to 18-month-old girl.
Ohio Attorney Used Fake Child Pornography Images During Expert Testimony – An Ohio lawyer who has served as an expert witness in child pornography cases took stock photos of two young girls and manipulated them to be sexually explicit. The attorney was trying to demonstrate how easily photos could be doctored and that defendants may see images that are not actually child pornography. A judge recently ordered the attorney to pay the two girls in the photos $300,000.
Child Pornography Convictions Lead to 35 Years in Federal Prison – A 41-year-old Ohio man was convicted of several federal counts of producing child pornography after filming himself molesting a small girl. Because of his past sex crime convictions, the federal judge sentenced him to 35 years in federal prison, and that sentence will run concurrently to state court sentences for a variety of related charges.
Ohio Legislature Trying to Pass Sexting Law – House Bill 355 was making its way through the Ohio legislature last year, with the House passing the Bill during the summer. The bill proposed a law that would criminalize sexting for minors. Many states already have sexting laws on the books, though it seems like House Bill 355 has stalled in committee since the House passage.
Contact an Experienced Cincinnati Child Pornography Defense Attorney Immediately
You may wonder when – or if – you should consult with a Cincinnati criminal defense lawyer if you are suspected or accused of child pornography. The answer is always to call the Joslyn Law Firm as soon as you possibly can. Our defense team can help from when you first believe you might be under investigation until the final outcome of your case.
If the police show up at your door or arrest you somewhere else, it is essential to remember you have the right to remain silent and the right to call an attorney. You may be tempted to talk and defend yourself, but this is never a wise idea. Instead, exercise your rights and call our defense attorneys in Cincinnati to begin assisting you.
When you are in the frightening position of facing federal or state child pornography charges, you can count on the Joslyn Law Firm to provide the defense you need. Contact us directly to discuss how we can help.
