Is It Illegal To Look At Child Pornography Or To Download It?
Yes. It is illegal to possess child pornography, even if you do not you look at it. Although the judge and jury will often assume that if you possessed it, you looked at it.
That said, not viewing the child pornography can be a mitigating defense. Mitigating elements can be the extent of the computer user skills; whether the computer user knew what they were doing when they downloaded the pornography; and how many other people may have had access to the computer. A forensic evaluation of the computer can be conducted to determine if the files were accessed, how long they were accessed, and whether they were deleted immediately or kept for some time.
Often, the forensic evaluation conducted by federal agents will uncover search terms that are usually indicative of someone searching the internet for child pornography. A very difficult aspect of a child pornography case to overcome occurs when the suspect confesses or makes an incriminating statement to agents. However, in some cases the suspect may have no criminal history or nothing in their past indicating any problems with children. Even when there is a confession or statement it is my job to investigate and find as much mitigation or favorable evidence that I can to help my client and thus, get the best result possible.
Agents and prosecutors often know the person charged with the crime did not actually create the child pornography and thus, had nothing to do with the production of the child pornography. However, just possession of child pornography can become a federal case. The prosecution and sentencing guidelines in a federal case are very severe and often lead to lengthy prison sentences and life time registration as a sex offender.
What Makes a Child Pornography Case a Federal One Versus a State Case?
Usually, a major factor in the determination of whether or not a child pornography case is filed in federal or state court depends on which branch of law enforcement conducts the investigation. If the investigation is conducted by the Federal Bureau of Investigation (FBI) or Homeland Security (HSI) then the case will more than likely be filed in federal court. Whereas, if the investigation is conducted by the local sheriff or police department the criminal charges will likely be filed in state court. In Houston, federal authorities are more selective, and they often will not file a federal case unless the number of child pornography images is in the hundreds or thousands. On the other hand, the district attorney’s office will often file state charges when there are just a few child pornography images.
What Are Some Potential Penalties at the Federal and State Level?
At the state level, possession of child pornography is often filed as a third-degree felony, punishable between two and ten years in prison. Distribution or promotion of child pornography is often charged as a second-degree felony which carries a prison sentence up to 20 years. In state court when the evidence has been stacked against my client because of a confession I have been very successful in negotiating plea deals for deferred probation without any jail time. Federal courts are required to consider specific sentencing guidelines, which often dictate the punishment based on the number of images and the types of images. Federal cases are often very serious and carry lengthy prison sentences.
For more information on Child Pornography Cases in Texas and a free initial consultation, contact the Law Office of James Alston at (713) 228-1400.