Possession, distribution, and manufacturing of child pornography is often punished severely in both Virginia and federal courts. As technology advances, so does the government’s ability to investigate and prosecute such charges. Often, they are very difficult to defend successfully. But a good defense attorney can craft a defense even in the face of seemingly overwhelming evidence of guilt.
The Virginia child pornography statutes prohibit conduct relating to “sexually explicit visual material.” Sexually explicit means there is a visual representation of bestiality, lewd nudity, sexual excitement or conduct, or sadomasochistic activity. Nudity alone is not enough.
To be considered lewd, the video or image would have to:
• trigger a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.
• The subject must be under age 18 and recognizable as underage by face, likeness, or other characteristics.
• The government doesn’t have to prove the actual identity of the minor. However, defense attorneys can use forensic experts to challenge whether the person depicted is an actual minor.
How possession is proven
To prove possession of child pornography in a case involving computer images (the vast majority of cases), the government must :
• connect the defendant to the computer,
• establish him as having exclusive access to it, and
• establish that he knew the images were stored in the computer.
The prosecutor can prove the last element if the computer had a desktop shortcut to easily view the images, or the images had been downloaded, saved or deleted.
Consequences of Child Pornography Possession
Possession of child pornography is a class 6 felony, meaning it is punished by 0-12 months jail or 1-5 years imprisonment and up to a $2,500 fine. Each image can be charged as a separate count.
Subsequent counts after the first are class 5 felonies punished by 0-12 months jail or 1-10 years imprisonment and up to $2,500 fine. So, if you have 50 separate images stored on the computer, the government can charge 50 counts of possession, even if each image was obtained at the same time or is stored as a single file.
About Pornography Distribution
Distribution (i.e., trading, giving, etc.) of child pornography carries a penalty of 5 to 20 years in prison for a first offense. Each subsequent offense is subject to the same range of punishment but carries a 5-year mandatory minimum term of imprisonment.
The production or financing of child pornography, including soliciting or enticing a minor to participate in its creation, is punished according to the age of the victim(s) relative to the age of the defendant, in these scenarios:
• If the minor is under 15 years old, the punishment is 5 to 30 years in prison.
• But if the defendant is at least 7 years older than the minor, a 5-year mandatory minimum term of imprisonment is triggered.
• If the minor is at least 15 years old but under 18, the defendant faces 1 year to 20 years in prison.
• But if the defendant is at least 7 years older than the minor, the defendant faces 3 years to 30 years in prison with a 3-year mandatory minimum.
Conviction Leads to Sex Offender Registry
Conviction of any child pornography offense requires the defendant to register with the state sex offender registry and also triggers prohibitions on entering school property, daycare facilities, and the like.
When the federal government gets involved
Child pornography prosecutions typically begin with the execution of a search warrant on the defendant’s home and electronic devices. Often, these investigations are led by the FBI along with with local authorities. Whether a case is prosecuted under Virginia law or federal law depends on many things, including the nature of the alleged offense, the volume and type of images possessed or distributed, etc.
Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce.
Federal jurisdiction is implicated if the child pornography offense occurred in interstate or foreign commerce, for example, using the U.S. Mail to transport child pornography across state or international borders. Federal jurisdiction almost always applies when the Internet is used to commit a child pornography violation.
Penalties for Federal Child Pornography Charges
Federal penalties are even more severe than Virginia. A first-time offender convicted of producing child pornography faces a minimum of 15 years to 30 years in prison. A first-time offender convicted of transporting child pornography in interstate or foreign commerce faces a minimum of 5 years to 20 years in prison. Federal sentencing guidelines are also much less forgiving than those in Virginia.
What to do if you or your loved one is targeted
If you find yourself the target of a child pornography investigation,
• Do not make any statements to police or other agents and contact an attorney as soon as possible.
• Typically, you will not be arrested at the time the initial search warrants are executed on your home and electronic devices.
• Comply with lawful commands during the search, but do not assist in your own prosecution by making admissions to authorities. Doing so may disarm your defense attorney’s ability to craft defenses and attack the search and seizure process.
Trial Experience and Passion Matter
Child pornography charges are among the most serious in the practice of criminal defense law. Attorneys Tracey Lenox and Michael Hollingsworth have had extensive experience defending—in court—those targeted in child pornography investigations.
Tracey and Michael are well known for their relentless drive and vigorous defense in Prince William and Stafford courtrooms—among other attorneys, judges and their own clients. Don’t take a chance on your future—hire the best defense possible to get the best outcome in your case.
We know you’re worried. And we’re here for you.