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"We are highly experienced child pornography crime lawyers. Experience matters in the child pornography crimes, which prosecutors and judges handle differently on a case by case basis. We know what to expect to get the best results possible"

Child Pornography Lawyer 

If you are an Internet user — as everyone is nowadays — you are a mouse-click away from a nightmare. While downloading materials, documents, web sites, or other digitally transmitted information during what you sincerely believe to be innocent “web surfing” or file sharing, you can unwittingly encounter illegal sexually explicit depictions of minors (i.e., children under the age of 18 years old). Without your knowledge or awareness, such materials remain on your computer and are shared through file sharing or WIFI networks. Instantly, in the blink of an eye, you can be targeted for possession and distribution of child pornography (also known as Pandering Obscenity Involving a Minor (Ohio Revised Code § 2907.321).

Imagine this scenario:

A cyber-crimes task force, armed with a search warrant, pounds at the door of your home or business, enters the dwelling or office, and tells you not to move, while law enforcement officers seize and forensically mine data from your electronic devices to determine the types of digital files and folders that you have downloaded. If this has happened to you, you have been targeted as a perpetrator of child pornography, a highly stigmatized criminal offense, carrying potentially life-altering penalties that will indelibly damage your reputation.

Pornography is the most Googled search term on the Internet, and while explicit adult depictions are generally not deemed to be illegal, engaging in any form of child pornography will render you a social pariah, having to endure lasting adverse repercussions on your life. Due to the serious nature of the offense, you may be unable to secure employment, exercise your rights as a citizen, pursue an education, or hold a job. In addition, the lasting social stigma will brand you as an outcast — an exploiter of the innocent — and subject you to extremely severe penalties and harsh sentences.

Given the stigmas attending child pornography crimes, the penalties associated with such offenses are significantly more severe than those imposed for actual child abuse. Society views these crimes as so heinous as to warrant the harshest consequences, placing the accused’s reputation in permanent jeopardy. Hence, the propensity of federal and state authorities to engage in constant online monitoring and surveillance.

For the above-mentioned reasons, you require the intervention of an experienced Columbus Ohio child pornography defense attorney who understands the intricacies of your case and can negotiate with authorities, when appropriate, and fight to protect and preserve your reputation. We are compassionate practitioners who will work tirelessly on your behalf, crafting every element of your defense to suit your individual circumstances. It is important that you should not undertake your defense alone, as you cannot anticipate the intricacies and ramifications of crafting that defense. Single-handedly taking charge of your case can yield dire consequences, such as the imposition of severe penalties.

Plan Your Strategic Defense to a Child Pornography Charge

Remember that time is of the essence, and planning a strategic defense can be the difference between a harsh prison sentence and going home.

Due to the complex nature of child pornography cases, defendants who are targeted and charged with the serious crime of child pornography must not unilaterally undertake their defense. Highly experienced attorneys at the Joslyn Law Firm are available 24/7 to listen to your individual story, respect your right to be represented and heard, and vigorously advocate on your behalf to foster the best outcome under the circumstances. Our non-judgmental approach focuses not upon “guilt” or “innocence” but rather, on the question, “What can we do to facilitate the best possible outcome for you?”

Attorneys at the Joslyn law firm have also served as prosecutors and in law enforcement. Therefore, we are keenly aware of every facet of your case, how to assess and analyze the legal options available to you, and build a cogent defense on your behalf. You are not alone. We have handled countless cases involving the crime of child pornography, and we will do everything in our power to achieve the best outcome under the circumstances.

We treat every individual with dignity, and are eager to identify mitigating factors that could reduce your sentence, preserve your reputation and quality of life. We understand the significance of preserving individual freedoms within the bounds of the law, while deferring to the rule of law and the sanctity of all life.


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Ohio Child Pornography Information Center

Child Pornography Overview

The Cultural Stigma of Child Pornography Charges

Specialized Prosecution in Child Pornography Cases

Child Pornography Investigations

State and Federal 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

Children Charged with Child Pornography (Sexting)

Examples of Child Pornography

Penalties for Child Pornography

Collateral Consequences of a Child Pornography Conviction

Child Pornography Defenses

Evidence in Child Pornography Cases

Experts in Child Pornography cases

Common Questions and Answers in Child Pornography Cases

Child Pornography Defense Resources

Child Pornography News and Articles


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Child Pornography Overview

Historical Background

Distribution, possession and reception of child pornography has been an issue of congressional concern since the late 1970’s with the promulgation of 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). By the mid-1980’s, Congress enacted stringent laws not only targeting large-scale distributors, but also producers and traffickers of child pornography. Congress found that all forms of obscene depictions involving minors caused serious physiological, emotional, and psychological harm, and concluded that severe punishment for the sale and distribution of such images would reduce incentives to commit these offenses. Subsequent enactments protected victims and increased mandatory minimums, in order to provide redress for victims. Therefore, the commission of such crimes reached a low ebb. In contrast to the present day, the opportunity of pedophiles to interact was drastically reduced, and with the enactment of initial sentencing guidelines in 1988, Congress effectively halted the purchase, distribution and trafficking of illicit images involving minors.

Over time, the law has become more stringent as the stigma of child pornography crimes and the outcry against them has emerged to the forefront of society. In the Supreme Court Decision of Osborne v. Ohio, 495 U.S. 103 (1990), the Court held that the First Amendment protection of free speech did not apply to the possession of obscene materials involving a minor and emphasized the damage to children whose images were used, as well as to children who were potentially susceptible to abuse by offenders who possessed that material.

In 1996, the Child Pornography Prevention Act was passed, designed to prohibit Internet child pornography, including virtual child pornography. The PROTECT Act of 2003 ("Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today") aimed to prevent child exploitation, and promoted investigation and prosecution of violent crimes against children. 

Today, the crime of indecent depictions of minors is definitively recognized as egregious and morally reprehensible and produces public outcry, due to the crimes’ lasting injurious effects on children. Correspondingly, mandatory minimums under the sentencing guidelines have increased, along with severe, life-altering punishments, including irreparable damage to the offender’s reputation.

Internet Proliferation

With the advent of advanced digital technology and the Internet, the crime of child pornography has tragically increased. With the click of a mouse, Cyberspace has become a breeding ground for nefarious sexual exploitation of minors in a variety of ways including, but not limited to, the following: social media, instant messaging, emails, newsfeeds, news groups, and peer-to-peer networking that enable the perpetrators to distribute, trade, share, receive, and possess the illegal material. These types of exchanges have desensitized offenders to the enormous physiological, emotional, and psychological harm resulting from such activity.

Unfortunately, due to the accessibility and widespread nature of Internet communications, child pornography is one of the fastest growing crimes in the United States today, with a 2,500 percent increase in arrests over the past decade, according to the FBI.

Child pornography is censored not only in the United States, but in most jurisdictions of the world. As of 2008, ninety-four of one hundred eighty-seven Interpol member states enacted laws specifically addressing the crime of child pornography, and fifty-eight of those states criminalized possession without intent to distribute. In nearly every Western nation, both distribution and possession are criminalized offenses. A vast network is underway to globalize the criminalization of child pornography, including the United Nations and the European Commission ("Child Pornography." Wikipedia. N.p., n.d. Web. 1 May 2018).

 


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The Cultural Stigma of Child Pornography Charges           

The cultural stigma involved in the commission of child pornography offenses cannot be over-emphasized. In fact, public outrage over the viewing, possession and distribution of such materials gives rise to harsher sentences than direct acts of child abuse. 

The truth is that you can be a law abiding citizen, sitting in your room, downloading harmless music or video files through a file-sharing program over a WIFI connection, and unknowingly possess and distribute child pornography, simply by saving the folders to your desktop.

The recent proliferation of surveillance and monitoring techniques subjects defendants to constant scrutiny by law enforcement and a justice system bent on conviction, almost irrespective of the circumstances. That is, if the illegal material is found on the defendant’s computer, a presumption of guilt arises, due to the heinous nature of the crime and the public sentiment attending the commission of child pornography offenses.

More than anyone charged with any other criminal offense, individuals suspected of and charged with the crime of child pornography need our immediate intervention. Why? Because society considers child pornography to be so egregious, that individuals charged with such offenses are scorned even prior to the presentation of evidence or exposure to the circumstances surrounding each particular case. Such fact presents an additional hurdle that does not exist in other cases. For these reasons, if you have been targeted as a child pornography offender, you require the intervention of an experienced Ohio criminal defense attorney, who understands your circumstances. The Joslyn Law Firm will build an artful defense to foster the best possible outcome in your situation.


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Specialized Prosecution in Child Pornography Cases

As mentioned, child pornography cases are being pursued with particular intensity. Even the slightest amount of evidence will compel a defendant to be charged. Some counties (including Franklin County) have child pornography prosecution teams dedicated to surveilling and pursuing child pornography in Columbus, Ohio.

The most salient reason for this vigorous pursuit is the involvement of children and a desire to protect them from the harrowing, enduring the physical, psychological, and emotional effects of the crime.

Another purpose is to preserve and protect their innocence and vulnerability. Children’s mindsets are not yet attuned to subject matter that should only remain only within the province of adult awareness. A third reason is to deter the escalation of conduct that exploits children, and to that end, impose serious penalties to curtail the criminalized behavior.

Special prosecutors are often assigned to handle child pornography cases involving repeat offenders and heinous acts against high-risk victims (e.g., those with diminished mental or physical capacity). The Franklin County Sheriff’s Department, the United States Attorneys office and the Ohio CAC also offer a child pornography unit which provides education, counseling, support, crisis intervention, and general assistance to children who have been victimized by child pornography crimes. In addition, the unit has courtroom advocates who work in tandem with community liaisons to provide a variety of services to victims of child pornography, along with a wavering witness, who is encouraged to appeal and testify at trial.


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Child Pornography Investigations

What To Expect 

Those who are suspected of committing child pornography crimes will be subjected to search and seizure by law enforcement, either in their home, business, or other venue where the illegal material may be situated. Law enforcement can only enter a dwelling with a valid search warrant, particularizing the locations to be searched and the items to be seized, signed by a judge. The search must be “reasonable” (that is, the warrant must reflect the scope of the search). If the search and seizure occurs outside the particularized terms of the warrant, all evidence that derives from that search will be deemed to be “fruit of the poisonous tree,” and therefore, inadmissible against the defendant, should the case proceed to trial.

All seized evidence that incriminates the suspect will lead to arrest.

If you believe that you have been subjected to a search and seizure, you require competent legal counsel to evaluate the reasonableness of the search and to craft a viable defense to save your reputation and facilitate your reintegration into society as soon as possible under the circumstances.

How Do the Authorities Target People for Investigation?

Federal and state authorities have various means of targeting people suspected of possessing, disseminating, selling, or otherwise distributing child pornography. They do so either through tips from people in the community or word of mouth, from an Internet Service Provider (ISP) or by pervasive independent monitoring /surveillance of the Internet for potential offenders. Law enforcement monitors web sites, chat rooms, and message boards for potential offenders, often posing as young children to “catch” the offenders in the act of engaging in the crime or other similar activities.

Whom Do the Local Police Investigate?

The local police typically investigate people who visit known websites that law enforcement monitors. These sites are regular mediums that commonly distribute child pornography (e.g., many file-sharing programs and other chat websites).

Typically, local law enforcement investigates one individual or two or more persons acting in concert within the same area who are deemed to be suspicious of engaging in the crime of child pornography.

When Do Federal Authorities Investigate?

There are many federal and state law enforcement bodies that act either independently or collectively to weed out child pornography offenders. Examples of federal investigative authorities include the FBI, the Department of Homeland Security, the Internet Crimes Against Children Task Force (“the ICAC,” created by the Department of Justice and the Office of Juvenile Protection and Delinquency Prevention) and the United States Postal Inspection Service.

How Are the FBI and Other Federal Agencies Dealing with the Crime of Child Pornography?

The FBI, Homeland Security, and U.S. Immigration of Customs Enforcement have made child pornography a primary focus of attention and have publicly declared it to be one of the fastest growing crimes in the United States. Correspondingly, the resources required to investigate such cases continue to grow, including aggressive “peer-to-peer” detection techniques and suspicious “honey-hole” operations. The FBI has come under intense scrutiny for allowing the continued operation of web sites over which it has seized control for the purpose of locating offenders who attempt to access child pornography sites. Law enforcement also engages in sting operations, where officers pose as underage individuals to ensnare perpetrators intent on committing child pornography crimes. Some officials also resort to text communications, designed to lure potential offenders to respond to illicit materials and communications.

The National Center for Missing and Exploited Children (NCMEC) has reported that there are no less than 50,000 people engaged in the “trading of illegal images” of children and the organization has collected more than 100 million images and videos of suspected child abuse cases. The NCMEC reports that 40 percent of all such cases stem from parental abuse, and 65 percent of all child pornography produced in the United States is generated by parents or family friends.

Activities Taking Place In Interstate Commerce

If the case is complex or involves activities that cross state lines and implicate multiple defendants, state law enforcement may contact federal authorities, who may take over the case and work in concert with the local police.

The FBI and the Department of Homeland Security deal extensively with offenses that are nationally or internationally focused, such as “rings” that disseminate child pornography across state lines or from overseas. These types of cases are usually very intricate and involve multiple suspects, large volumes of material, and various types of illegal conduct.

How Does a Suspect Know that an Investigation is Taking Place?

Given the complexities of Internet technology, it is possible that a suspect may be oblivious to an investigation until law enforcement shows up at the home or business with a search warrant. If this occurs, let the federal or state officers in and allow them to conduct a search. You have the right to call a criminal defense attorney, if you wish.

If the police conduct a Search, DO NOT SAY ANYTHING while the search is in progress. Rather, you should call your Columbus Ohio Criminal Defense Attorney immediately. The Joslyn Law Firm is on hand to take your call 24 hours a day, 7 days a week.

Deleting Files Does Not Eliminate Incriminating Evidence 

Many people erroneously believe that deleting files will effectively wipe incriminating material — or any files, for that matter — off of their computer, but that is not the case. Files are not automatically obliterated simply by deleting them, and when the officers seize the computer for forensic analysis, the deleted files will be found in the computer’s hidden space.

Can Your Criminal Defense Attorney Prevent Charges from Being Filed?

If the material in question is minimal or benign, there may be leeway to avoid the filing of charges altogether. However, if charges are filed, we will negotiate with the prosecutor and ensure that your case is handled at the state level, if possible. We will also work to minimize media involvement. All of this work is accomplished by attorneys who understand the intricacies of child pornography cases, acting behind the scenes before charges are filed.

Resources Dedicated to Investigations and Prosecutions

Given the urgency of protecting children, state and federal law enforcement agencies have allocated massive resources to identify those who possess obscene materials involving minors and aggressively locating and apprehending those involved in the distribution and production of such illegal material.

Investigations of child pornography typically occur when a state or federal law enforcement officer or the two of such individuals, acting together, search a person’s home after obtaining information, via the individual’s Internet IP address, that places the individual under a cloud of suspicion. This triggers an investigation into the possibility that the individual has engaged in the possession and/or distribution of child pornography through Internet file sharing programs or over a WIFI network. The officer enters the individual’s home or business dwelling with a search warrant, without placing the individual under arrest, and the officer inquires whether or not the individual has engaged in the alleged criminal activity.

Although it is never advisable to answer questions without a criminal defense attorney on hand, law enforcement officers are often able to elicit scathing admissions.

How can Joslyn Law Firm Assist at the Investigation Stage? 

We immediately reach out to state or federal investigators, and we begin a cordial, open dialogue to determine whether charges are appropriate, to avoid arrest or incarceration while the case is pending, and to discuss potential resolutions. Simultaneously, we privately advise clients on steps that they can take during the investigation stage, search and seizure issues, and possible affirmative and mitigation defenses to positively influence outcome. Significantly, we proceed with the charge as a summons instead of a warrant to avert the typical jail process.

At this earliest possible point, you should hire a criminal defense attorney, experienced in the issues at hand. The Joslyn Law Firm will intervene at the outset to effectuate a resolution of your case as soon as possible, under the circumstances. Our highly experienced attorneys are keenly aware of the nuances of cases such as yours and have worked in law enforcement and as prosecutors themselves. Therefore, they have an intrinsic understanding of how the justice system works and can readily craft your defense based on your unique situation. While it is true that there is nothing new under the sun and your attorneys have handled countless child pornography cases, we look at individuals, not statistics.


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State and Federal Child Pornography Charges

As mentioned earlier, even the slightest amount of evidence will compel a defendant to be charged. Some counties (including Franklin County) have child pornography prosecution teams dedicated to surveilling and pursuing child pornography in Columbus, Ohio.

What Determines Whether Cases are Tried In State or Federal Court?

There isn’t any hard and fast rule as to which court — state or federal — will assume jurisdiction over a child pornography case. However, as a general practice, if the FBI or Homeland Security assumes the investigation, the case will be tried in federal court. Otherwise, the case will go to state court. In many instances, the state court will, in all events, take the case, even if the aforementioned agency/department is involved.


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Ohio Pandering in the Obscenities of a Minor Statute

Understanding the detailed elements of the Ohio Pandering in the Obscenities of a Minor Statute (§2907.321) is essential to crafting your defense, and could potentially determine the outcome of your case. In other words, if you and your child pornography defense attorney can demonstrate the absence of one or more of the required elements for conviction, the prosecution will not be able to prove its case beyond a reasonable doubt.

Section 2907.321 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

Definitions Under § 2907.321

“Knowledge”—In order to be found guilty of pandering in the obscenities of a minor, the defendant must have known of the nature of the offense at the time of its commission. That is, the defendant must have had knowledge of the conduct at issue and the fact that such conduct was criminal in nature. Such knowledge must exist at the time of the crime’s commission. Knowledge after-the-fact does not qualify. For example, defendant’s friend gives him a CD that contains child pornography. However, defendant tells his friend that he is giving him music files and asks him to copy and give them to someone else. The CD is labeled with the names of popular songs. Therefore, without viewing or examining the files, the friend reasonably believes what the defendant has told him. He therefore proceeds to copy the files and gives them to another. Outcome: the friend would not be guilty of the crime of distribution of obscene materials involving minors. Similarly, if the defendant revealed the true contents of the files after the fact, the friend would not be found guilty. Why? Because defendant’s awareness of the nature of the offense and knowledge of the wrongdoing must occur contemporaneously (at the same time). 

“Obscene Material”

Obscene material is defined as depictions which, when taken as a whole, appeals to the prurient (sexual) interest, patently (blatantly) and offensively depicts sexual conduct in a manner that would offend an average, reasonable person. In addition, when considered as a whole, the material lacks serious literary, artistic, political, or scientific value.

Illegal content includes photographs, images or other digital or pictorial depictions, magazines, and replicas/photocopies of images. The content can be stored on DVDs, CDs, USB drives, internal and external hard drives, or other devices and/or data storage mediums.

“Minor

A minor is defined as a person under the age of majority (under age 18). At times, it can be difficult to determine whether or not the individual depicted in the explicit material is, in fact, a minor. Your attorney will also determine whether the material falls within the legal definition of child pornography: the person depicted or involved in the material or performance of obscenity can be inferred to be a minor through the title, text, visual representation, or if the material or performance represents or depicts the person involved as a minor. The judge and jury decide whether the individual(s) represented are, in fact, minors, and the burden of proving the minor status of the participants ultimately falls upon the prosecution. If the prosecution cannot show that the individuals depicted are under 18 years of age, it will not be able to prove that the material was “obscene” and the charge will fail.


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Ohio Elements of Pandering of Obscenities Charges

In order to fashion a cogent and potentially successful defense, individuals charged with child pornography must be aware of the elements of the crime. Other than abstention from the prohibited criminal conduct, lack of awareness is the best safeguard against conviction. 

To be convicted of pandering obscenities in Ohio, the defendant must have committed one or more of following offenses:

  • Possession of Child Pornography involves the knowing, intentional keeping and storing of obscene materials involving minor children under the age of 18. Knowledge encompasses understanding the nature of the offense and awareness of wrongdoing at the time of the crime’s commission. Intent goes to the defendant’s mental state and is compromised of knowledge and purpose in furtherance of the wrongful act.
  • Production of Child Pornography involves the fostering and encouragement of minors’ participation in depicting sexually explicit acts. These acts need not be performed to be criminal; they can also be simulated (give the appearance of) sexually explicit conduct. For a finding of guilt, the defendant must have had knowledge of the nature of the offense and intent to commit the act.
  • Distribution of Child Pornography involves the intent to transfer, sell, or disseminate sexually explicit material depicting minors, either immediately or at some point in the future. Note that the prosecution does not have to prove that the defendant committed the act precisely at the moment that the element of intent was formed, or that the defendant had a particular person in mind. The prosecutor only has to prove that the defendant intended to distribute, show, sell, or exchange sexually explicit material involving minors. This element may be proven by either direct or indirect evidence.

Example of Direct Evidence: The prosecutor can produce emails in which the defendant expressly agreed to distribute the materials at issue.

Example of Indirect Evidence: Defendant is a member of a group that has a history of file sharing and exchanging the materials in question.

Note, however, that even if the prosecutor has difficulty or is unable to prove defendant’s intent beyond a reasonable doubt, a charge can still be filed.

  • Knowledge and Intent to Possess, Produce, and/or Distribute Obscene Material — Obscenity is defined as material which (1) appeals to the prurient (sexual) interest; and (2) lacks serious literary, artistic, political, or scientific value.

To be charged, the defendant must have knowledge that the material in question falls within the above definitions, and defendant must have the requisite intent to engage in possessing, producing and/or distributing such material.

Keep in mind that in the case of possession, knowledge of the nature of the offense and the act itself must be contemporaneous (i.e., occur at the same time).


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Federal Child Pornography Statute (18 U.S.C. § 2251)

An overview and comprehensive understanding of 18 U.S.C. § 2251 will fortify defendants in defending charges of production and/or distribution of child pornography.

Federal cases typically divide defendants into two categories:

(1) those who allegedly commit production offenses, in which the defendant advertises for minors to appear in child pornography photos, videos, or other materials; and

(2) those who allegedly engage in distribution and collection offenses, without producing them (“non-production” offenses). 

18 U.S.C. §2251 – Sexual exploitation of children provides:

  • 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. 
  • 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 (e).

(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.


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Federal Elements of Child Pornography Charges

In considering the elements of child pornography under federal law, note that knowledge and intent to commit the crime are salient. The following explanations will be instructive and assist defendants in understanding the elements of the crime.

Knowing Possession of Obscene Material — Commission of the crime of child pornography involves physical possession and/or access to sexually explicit materials involving minors via the Internet. The prosecution must prove that either the defendant had possession of the illicit material or accessed it with an intent to view it. Therefore, under federal law, accessing the material alone, without downloading or keeping the images, still subjects the defendant to liability under federal law.

Possession of Child Pornography — An Offense Under 18 U.S.C., Chapter 110, § 2252

When a defendant acts with knowledge and intent to view films, books, articles, computers disks, videos or any other sexually explicit material involving a minor, the defendant can be subjected to severe penalties and a possible prison term of up to ten years. If, however, the material depicts a prepubescent minor under age 12, the prison term increases to 20 years. 

Prosecution for Possession of Child Pornography Under Federal Law can occur only when the federal courts assume jurisdiction over the case. The requirements for placing the offense under federal jurisdiction are quite broad, particularly given the Internet’s expansive reach, which renders child pornography almost always subject to federal jurisdiction.

Production of Obscene Material Involving Minors Engaging in Explicit Sexual Conduct

For purposes of federal law (as in the state of Ohio), a minor is anyone under 18 years of age. The definition of “sexually explicit material” is far-ranging, though it generally means engaging in sexual intercourse or other sex acts, the lascivious display of genitals or pubic area, or a simulation of these acts. The trier of fact (i.e., the jury) must consider whether the nature of the material, when considering the totality of the content in question, falls within the purview of criminality. 

The material must appeal to the prurient interest in the form of sexual activity or display of the genitals. Those depictions that represent children in adult poses, but fully clothed with covered genitals and pubic areas are not considered obscene material involving minors under federal law.

To qualify as falling within the definition of being “sexually explicit conduct,” the image does not have to depict the child engaging in sexual activity. Nudity is also considered to be illegal pornography if it is sufficiently sexually suggestive. The image must be taken in the context of the publication, film, electronic medium, etc.. For example, photos of naked indigenous children in an anthropology textbook most likely would not be considered child pornography under federal law. 

Exception:

Any depictions that have either, literary, educational, artistic, political, or scientific value are not considered child pornography under federal law.

Visual Depictions of Sexually Explicit Conduct

This element emphasizes that there must be a visual representation of a minor engaged in the illegal conduct. The law specifically enjoins depictions of such acts.

Knowledge that the Visual Depiction was of Sexually Explicit Conduct, and Knowledge that At Least One Person Was a Minor

This final element speaks to defendant’s actual knowledge of the materials’ content. Typically, the prosecution will argue that the material contains patently explicit depictions, and therefore, the “knowing” element is a necessary consequence of viewing that content. However, there may be instances where the prosecution is unable to prove that the depictions at issue involved any person or persons under the age of 18.

Distribution of Child Pornography Offense Under Federal Law

This offense includes the knowing distribution, sending, transport, shipping, copying for distribution and receiving of child pornography, including via the internet.

Distribution and Sale of Child Pornography

18 U.S.C. Chapter 110 § 2252 prohibits the knowing transport, distribution, or sale of visual depictions of lewd conduct involving minors (child pornography). First offenders face 5 to 20 years in prison, and those with prior offenses can expect a sentence of no less than 15 and up to 40 years.

Production of Child Pornography by a Legal Parent or Guardian (18 U.S.C. § 2251)

Production of material involving parental or legal guardians is a criminal offense when said person(s) knowingly permit a minor or minors to engage in any form of sexually explicit conduct for the purpose of producing visual depictions of such conduct. In addition, the knowing publication of an advertisement that has as its underlying motivation the purchase, production or distribution of child pornography is strictly prohibited by law.

The Prosecution’s Burden of Proof Under Federal Law

The prosecution’s “beyond-a-reasonable-doubt” standard involves the following:

(1) that the defendant knowingly possessed or accessed material containing or depicting visual images of minors engaged in sexually explicit conduct; and

(2) that the aforementioned activity took place within the United States or otherwise satisfies the requirements for the imposition of federal law; and

(3) that the production of the material involved a minor or minors engaged in sexually explicit conduct; and

(4) that the defendant knew of the nature of the content

Affirmative Defense to Child Pornography Under the United States Code

(18 U.S.C. §2252)

Defendant possessed less than three (3) depictions of pornography, allowed access to each visual depiction, or

took reasonable, good faith steps to destroy the material and then report the matter to a law enforcement agency.


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Children Charged with Child Pornography (Sexting)

First used in the Australian Sunday Telegraph Magazine in 2005, the term “sexting” is defined as the sending of sexually explicit messages and/or images and videos via smartphones, tablets, or other similar devices. Sexting can occur either between adult partners or consenting adults that are in (or hope to be in) a romantic relationship. When sexting occurs between consenting adults, the act is not a crime. However, if the act of sending explicit images involves those under the age of majority, it becomes illegal. For example, adults aged 18 years and over sometimes enter chatrooms, engage in the act of sexting, and eliciting replies. Young teens who respond to such messages then become unwittingly involved in and victimized by child pornography. Ultimately, this type of illegal activity is neither viewed nor charged any differently than an actual predator who engaged in the handling of child pornography.

Anyone who knowingly creates, reproduces, or sends sexually explicit images (whether or not faces are visible) via cell phone, text, social media or other forms of online communication between or involving individuals under the age of majority (18 years) becomes embroiled in the crime of child pornography. The fact that the minor(s) involved have consented to such activity is not a defense. If a minor female texts an explicit image of herself to her boyfriend, both the sender and the recipient can be charged with sexting. If the boyfriend then forwards that image to someone else, that person can also be charged.

Although laws specifically pertaining to sexting on not on the books in Ohio, it is a crime to create, reproduce, buy, sell or advertise sexually explicit material involving a minor, and can lead to charges of pandering, obscenity involving a minor, child endangerment and bullying, among other crimes. 

As to consenting adults, sexting is not a crime, but can lead to harassment, invasion of privacy, and/or other felonious activities, triggering criminal or civil liability.

Typically, state sexting statutes are unconstitutionally vague, and juvenile defense attorneys often attempt to have the charges dismissed. When the act of sexting is accompanied by the commission of other crimes, such as sexual assault or rape, juveniles may be required to register as sex offenders, or alternatively, if the offender has reached the age of majority and knowingly disseminates sexually explicit photographs to a minor, the same result may obtain. However, without other exacerbating factors, the consensus has been to downgrade the charges to a lesser offense.

Juveniles charged with sexting crimes are prosecuted according to the discretion of Ohio state prosecutors, in some cases placed in a diversion program, and subjected to various community service tasks. However, prosecutorial leniency in these cases does not negate the lasting effects on a child’s future. Minors charged with sexting crimes often feel compelled to perpetuate their behavior as a means of sustaining relationships. Moreover, the pervasive use of cell phones prompts the need to engage in sharing suggestive images. The proliferation of such exchanges can have enduring — and tragic — emotional and psychological effects on the participants, resulting from the dissemination of explicit photographs, and concomitant bullying.

In order to stave off the potential dire emotional and mental health effects of sexting, the intervention of forensic specialists trained in child and adolescent psychology can intervene to mitigate the potential domino effect of even a single act of sexting. 

To constitute child pornography, the production of said material must involve an individual under 18 years of age. This second element of the offense is not as straightforward as it may seem, since the age of the individual(s) depicted in the material at issue is not always evident. The burden falls upon the prosecution to prove that the representations are, in fact, of prepubescent children, not eighteen-year-olds portrayed as minors. If, however, the images clearly depict minors, proof must still be established.


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Penalties for Child Pornography Convictions

The penalties for a child pornography conviction are quite severe and can have enduring effects on an offender’s life, most notably sex offender registration and prison terms, along with collateral consequences.

Ohio Revised Code § 2907.321-322

Pursuant to Ohio Revised Code § 2907.321-322, the following penalties will ensue for a child pornography conviction:

  1. Production, reproduction, or distribution of explicit materials involving minors is a felony of the second degree, with a rebuttable presumption in favor of 2-8 years in prison. If a defendant does not have viable affirmative defense, a mitigation defense may be available if it is sufficiently legally justifiable to overcome the presumption. 
  1.  Pandering in the obscenities of a minor is punishable by up to eighteen months in prison (but this is not a presumption in favor of prison). The sentencing court looks at whether the defendant has prior convictions, and if so, a harsher sentence will be imposed. If there are similar offenses in a defendant’s background, that individual will have an uphill climb. If the defendant pleads guilty or is convicted of the crime, sex offender registration is not negotiable. The only means by which sex offender registration is not mandatory is if defendant pleads not guilty, the case is dismissed, or the prosecutor agrees to amend the offense off of another sex offense.
  1. Possession, creation, recording, photographing, filming or disseminating illicit materials involving minors is a Tier II classification that carries mandatory sex offender registration for a period of twenty-five years under the Ohio Revised Code § 2907.321-322. Such a penalty places restrictions on where the offender can live, the ability to obtain employment, own property, engage in academic studies, and exercise civil liberties (e.g., the vote), among other restrictions.

 

 Child Pornography Sentencing Chart

Offense

Penalty

Sex Offender Registration

Possession (4th Degree Felony)

18 months in prison and/or fine of $5,000

Tier II, Mandatory 25 years

 

Production (2nd degree felony)

 

2-8 years in prison (rebuttable presumption) and/or $15,000 fine

 

Tier II, Mandatory 25 years


Penalties Overview Under
Ohio Revised Code § 2907.321-322

Possession of child pornography is a 4th degree felony, punishable by 18 months in prison and/or a fine of $5,000. For a Tier II offense, there is a mandatory sex offender registration of 25 years.

Production of child pornography is a 2nd degree felony, punishable by 2 to 8 years in prison (carrying a rebuttable presumption) and/or a $15,000 fine.

Ohio Revised Code § 2907.323 Illegal use of minor in nudity-oriented material or performance.

According to Ohio Revised Code § 2907.323, the crime of illegal use of a minor in nudity-oriented photographs or videos (child pornography), the following offenses and corresponding penalties are the following:

1) Photographing any minor who is not the person's child or ward in a state of nudity or creating, directing, producing, or transferring any material or performance that shows the minor in a state of nudity. This is a felony of the second degree, punishable by up to 8 years in prison. Those convicted will also have to register as a sex offender and follow the strict rules for where a sex offender can live, work, travel, etc.;

2) Consenting to the photographing of the person's minor child or ward, or photographing the person's minor child or ward in a state of nudity or consenting to the use of the person's minor child or ward in a state of nudity in any material or performance, or using or transferring material is a felony of the second degree as a first offense, punishable by up to eight years in prison. Those convicted will also have to register as a sex offender and follow the strict rules for where a sex offender can live, work, travel, etc.

3) Possessing or viewing any material or performance that shows a minor who is not the person's child or ward in a state of nudity. This is a felony of the third degree, punishable by up to thirty-six months in prison. 

4) Possession or viewing of any material or performance depicting a minor who is not the person’s child or ward in a state of nudity is guilty of a felony of the fifth degree, punishable by up to 6 to 12 months in prison, unless one of the following fact scenarios applies:

The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, 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, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance, or

The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred. 

Sentencing Chart for the Illegal Use of Minor in Nudity-oriented Material or Performance. 

Offense

Penalty

Sex Offender Registration

Production (2nd degree)

Up to 8 years in prison

Mandatory

 

Consent to production or distribution (2nd degree)

 

Up to 8 years in prison

 

Mandatory

 

Possession (3rd degree)

 

6 months

 

__________


Penalties Overview Under
Ohio Revised Code § 2907.323

Under Ohio Revised Code §323, production or consent to production of illegal materials or performances depicting minors are felonies of the 2nd degree, punishable by up to 8 years in prison, with mandatory sex offender registration.

Possession of such depictions or performances is punishable by 6 months in prison. Sex offender registration is not required.


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Collateral Consequences of a Child Pornography Conviction

When convicted of a child pornography offense, an individual’s entire quality of life is at stake, irrespective of whether or not the conviction carries a prison sentence. These consequences can and do have an indelible impact, which cannot easily be overcome.

The repercussions of a child pornography conviction are the following:

A permanent criminal record can prevent you from being gainfully employed or retaining a job, lead to loss of your driver’s license, impede your ability to attend an institution of higher learning, and most of all, you will suffer the enduring social stigma of having a criminal “rap sheet.”

Loss of the right to own a firearm deprives you of your Second Amendment right to keep and bear arms, without going through extensive bureaucratic and legislative processes. If you are convicted of committing a child pornography offense, obtaining a firearm permit in Ohio will be extremely difficult.

      Losing the right to vote is disenfranchisement or deprivation of suffrage, the right of every person to participate in the electoral process.

            Loss of child custody or visitation alienates you from your children or those in your custody.

            Denial of a visa, permanent residency, citizenship, or deportation will jeopardize your status and right to remain in the United States, and may force you to return to your country of origin and/or forfeit your right to United States citizenship.

            Complete restriction from living within 1000 feet of a school

            Restriction from obtaining certain types of licenses, including professional licenses (e.g., a teacher’s, doctor’s, or nurse’s license)

 


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Child Pornography Defenses

Due to the serious nature of child pornography charges, you require vigorous advocacy, and that is just what we are here to do: build a cogent defense, tailored specifically to your circumstances. We know that every defendant and every case is unique and must be treated according to the particular facts at issue. We look at the totality of the circumstances, and do not focus on “guilt” or “innocence.” We have dealt with countless cases involving child pornography and understand the nuances of every one. Therefore, we want to gain knowledge about your specific case and the circumstances surrounding it. We understand that there are hearts behind the statistics. People are not statistics — or even deeds. We never take anything at face value. Instead, we go to the core of the matter to achieve the best outcomes possible.

That is why you require the expertise of the Joslyn Law Firm. We are aware that at the outset, a presumption of innocence exists. Therefore, even if the evidence overwhelmingly works against you and/or you have made admissions, we understand that the outcome of any given case is never fixed in stone. Therefore, it is essential that you obtain competent, experienced legal counsel to advocate on your behalf. We will work tirelessly to obtain the best possible outcome.

Potential Legal Defenses include the Following:

Fourth Amendment Search and Seizure Violations — also known as “fruit of the poisonous tree.” This is evidence obtained unlawfully or otherwise derived from an illegal search and seizure of items and/or materials within your home, place of business, or other areas in which you have a right to personal, private space. This kind of activity violates the dictates of the Fourth Amendment to the United States Constitution. For example, law enforcement enters your home without a valid search warrant (signed by a magistrate, particularizing the location and items to be searched and/or seized. Any materials or items that are seized as a result of that search are not admissible at trial and are subject to suppression.

Entrapment — A demonstration that, in the absence of coercion or trickery that lured or compelled you to engage in the illegal conduct, you could not have had a predisposition to so engage. Many investigators attempt to capture child pornography suspects through deceptive practices, such as assuming false identities and persuading people to distribute illegal images of children online. If the person under suspicion can show that he or she would not otherwise be predisposed to engage in such conduct, entrapment may be a possible defense. 

Showing a Lack of Possession of the Illicit Images — Viewing illegal images is not tantamount to possession. The prosecutor must show that you took concerted action in furtherance of possession by saving the images on your computer. 

Accidental Possession – Unwitting (unknowing) possession through viruses or hackers constitutes accidental possession. It is not uncommon for people to have thousands of files on their computer that they never knew existed.

Unawareness of the Nature of the Offense — As in all instances where someone is accused of a crime, knowledge and intent are essential elements that must be proven beyond a reasonable doubt in order for the defendant to be found “guilty.” Due to the vast array of information available on the Internet, web sites can and do contain myriad information — virtually anything that someone “surfing the web” may be seeking. As mentioned, explicit adult conduct is generally not deemed to be a crime. However, if for example, a man visits a web site selling adult pornography, proceeds to download and purchase it, and later discovers that one or more individuals represented in the photographs or videos was a minor, he will be subject to strict surveillance. This occurs when law enforcement gathers contact information from various sites, and then targets individuals who have downloaded the material. 

In keeping with the requirements of knowledge and intent, the man in the above hypothetical will be found “not guilty” of possessing and viewing child pornography, if he can demonstrate that he had no knowledge that the material depicted minors, the site did not indicate that the material was of such a nature, and therefore, he had no reason to believe that the material he downloaded and viewed was illegal. In such a case, the prosecution will fail to prove its case beyond a reasonable doubt.

The “It Wasn’t Me!” Defense — Far be it for us to state the obvious, but to be charged with a crime, the defendant must have committed the offense. If you did not download or keep the material found on your computer, you have a logical defense. The “knowing” element essential to a finding of guilt is lacking in this case. When computers are shared or there is a shared common network, as is often the case, it might be possible that someone else downloaded and accessed the illicit material.

Keep in mind, however, that forensic analysts are able to track user information, such as by the use of time-stamps. 

Material That Does Not Fall Within the Definition of Child Pornography

Under ORC 2907.321 (B), the following material, depictions, or performances are not subject to prosecution: those that are sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into the state of Ohio, 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 (emphasis added).

Unknown Computer Viruses

Viruses or “Trojan horses” can cause material to appear on your computer that you may inadvertently view, experience a sense of revulsion, delete entirely, and still be targeted by law enforcement. Remember that the deletion does not automatically obliterate the illicit material, which may be hidden away in your computer system. If this occurs without your knowledge or intent, you have a viable defense. 

NOTE REGARDING MISTAKE OF AGE — Mistake of age is not a defense to the crime of child pornography. In addition, possession and distribution are not protected activities under the Constitution’s First Amendment Free Speech Clause. 

The Prosecutor Does Not Have Enough Evidence to Prove the Case Beyond a Reasonable Doubt – The prosecution has the heavy burden of proving each and every element of the offense at issue beyond a reasonable doubt. Unfortunately, however, some charges are filed without adherence to that standard of proof. In such cases, the Joslyn Law Firm engages in various methods to defeat the allegations. 

If there is not enough evidence to support a charge, we can employ either of three (3) strategies:

(a.) We negotiate with the District Attorney to have the matter disposed of prior to the filing of charges. In many cases, a proper examination of the evidence reveals flaws in the case, such as the prosecution’s inability to prove that the individuals depicted in the illicit material are minors.

(b.) Secondly, prior to trial, where there is insufficient evidence to support the charge(s), we will advocate to have the case dismissed at the pre-trial stage. In instances where, despite our efforts at negotiation, the prosecution insists upon going to trial, we can call for a pre-trial evidentiary hearing at which we have the opportunity to demonstrate the inadequacies of the prosecution’s case to the judge. In many instances, we can get the charges dismissed before the case proceeds to trial.

(c.) We can decide to proceed to trial, take the stand, and reveal prosecutorial inadequacies in adhering to the beyond-a-reasonable-doubt standard. Our attorneys are highly skilled in demonstrating flaws in the prosecution’s arguments, so as to create reasonable doubt and have the jury render a “not guilty” verdict. Given that we have ex-police officers and DAs on staff who know how to dismantle weak evidence, we have a very broad, comprehensive view of the issues that can potentially arise.

Lack of Actual or Constructive Knowledge — The first consideration is whether or not the defendant had actual or constructive knowledge that the materials were in his or her possession. If defendant did not have such knowledge, the intent and awareness necessary for the commission of the crime (and hence, guilt) will be lacking. Actual knowledge is direct understanding and awareness of the nature of the offense. Constructive knowledge involves being on notice that the conduct taking place involves illegal activity and an act in furtherance of committing or facilitating the commission of the crime of child pornography. For example, if someone tells the defendant to distribute material on a DVD that contains sexually explicit depictions of minors, but the defendant downloads the information which he believes to be a harmless music video, defendant would not be deemed culpable.

When Defenses Are Not Available

If you are without recourse and you have knowingly and purposefully engaged in illicit activity involving child pornography, your Columbus Ohio child pornography attorney will analyze any confessions that you may have made in the presence of law enforcement to determine whether such confessions are subject to a motion to suppress.

Questions to consider:

  • Did you make a confession?
  • If so, to whom and under what circumstances?
  • Was the confession in any way coerced? If so, how?
  • Did law enforcement have a search warrant when seizing the material in question?
  • Was the search warrant valid (i.e., did the warrant particularize the items or material to be searched and seized?)
  • Were you placed under formal arrest or forcibly denied your freedom to leave for an unreasonable time period?
  • If so, were you read your Miranda rights?

In the absence of a viable affirmative or constitutional defense, mitigation defenses may be available. As stated, these types of defenses do not guarantee exoneration of the crime, but can serve to significantly lessen the imposition of harsh penalties and sentences.

A List of Mitigation Defenses

Examples of mitigating circumstances may include, but are not limited to, the following:

  • Defendant experienced child abuse firsthand;
  • The existence of developmental, social or cognitive impairment;
  • Exposure to neurotoxins/lead poisoning;
  • Military post traumatic stress disorder (PTSD);
  • Alcohol addiction and substance abuse affecting both cognition and behavior;
  • Genetic and environmental factors, such as addiction to medication;
  • Relapse after treatment;
  • Adolescence/immaturity;
  • Older age (lower risk of recidivism);
  • Anger issues;
  • Attention deficit disorder/Attention deficit hyperactivity disorder;
  • Chemical imbalance and impulsive behavior;
  • Childhood exposure to violence;
  • Childhood with incarcerated parents;
  • Circumstances of the offense no longer exist;
  • Collateral consequences of conviction;
  • Circumstances of prior offenses;
  • Questionable deterrent benefits of a harsh prison sentence in a given individual’s case;
  • Acceptance of responsibility and willingness to enter treatment or perform community service;
  • Homelessness;
  • Abject socioeconomic status and its psychological and emotional effects;
  • Medical conditions and those with psychiatric consequences;
  • Effects of medication;
  • Minorities and underemployment;
  • Vulnerability in prison
  • Good behavior prior or subsequent to the offense;
  • Likelihood of Recidivism
  • Any circumstance or condition that negates the elements of knowledge and intent;
  • Volume and frequency of possession. The volume and frequency with which defendants download the materials indicate whether or not they were aware of the nature of the activity. If this is a first-time offense and a few photographs, videos, DVD’s, etc. were involved, the penalty will be more lenient than if the defendant is a serial offender with voluminous amounts of illegal depictions of minors in his/her possession.

Volume and frequency of possession, production, and distribution of child pornography also have an impact on the severity and duration of punishment;

  • Defendant was abused as a child and suffers the residual effects of child abuse
  • Rehabilitation

Aggravating or Mitigating Circumstances

Aggravating circumstances include a large number of illegal images in your possession, or if there is any indication of violence toward the minor(s) in question.

The presence of mitigating circumstances (i.e., factors that may contribute to a departure from the sentencing guidelines) may influence the outcome of the defendant’s case. While these factors do not negate or diminish the seriousness of the offense or the potential for the imposition of a harsh sentence, they can explain the defendant’s behavior and bolster the argument for greater leniency the sentencing phase. A cogent history of defendant’s unique circumstances should be elucidated in the sentencing memorandum, particularizing the events and/or circumstances that may have caused the defendant to engage in the offense of child pornography.

Integration of Mitigating Factors Into the Sentencing Memorandum 

In cases where a plea is necessary to resolve the case, it is important for your attorney to interpose a sentencing memorandum to introduce your unique case to the court. In composing the sentencing memorandum, your criminal defense attorney should tailor your story/the theory of your case to your specific circumstances in a persuasive manner, such that the sentencing court will be compelled to consider your individual case and not simply brand you as a child pornography offender and impose a sentence based on the sentencing guidelines. We at the Joslyn Law Firm adopt a humanistic approach to legal practice. When you call upon us for advice, we listen and review your individual circumstances, so as to craft the best defense in your favor.

All relevant mitigating arguments are presented by your defense counsel in a sentencing memorandum to the court. Counsel argues for a sentence sufficient—but not greater than necessary to rehabilitate the offender.

The sentencing memorandum should address factors set forth under state and federal sections that are considered prior to the imposition of sentence. In considering the imposition of the particular sentence, the court should take into account:

  • The nature and circumstances of the offense and the history and characteristics of the defendant;
  • Providing just punishment for the seriousness of the given offense, while promoting respect for the law;
  • The level of deterrence warranted for a given offense;
  • Protection of the public from recidivism (similar repeat offenses);
  • Provisions for the defendant’s educational or vocational treatment, medical care, or effective correctional treatment. 

Other factors at issue for the court include, but are not limited to, the following:

  • The defendant’s age – the older the defendant is, the lower the risk of recidivism, in some cases; 
  • Defendant’s physical and mental state;
  • The number of offenses (is defendant a first-time offender)?
  • Defendant’s history and other environmental factors;

Aggravating or mitigating circumstances

  • The efficacy of treatment programs in a particular case and their effects on recidivism;
  • The likelihood that sanctions may increase recidivism — Studies show that correctional sanctions actually increase the likelihood of repeat offenses;
  • The fact that crime deterrence often lies in the certainty, rather than the severity of punishment. Harsh sentences may not convey the all-important message that committing crimes is a stark departure from social mores, and tends to isolate individuals. A healthy society operates on orderliness, cohesiveness, harmoniousness, and respect for the sanctity of all life; isolationism is not always effective in fostering such attributes. In fact, the opposite may occur.
  • Maintaining family ties between a father and child reduces the risk of recidivism;
  • Holding a job that pays a living wage and conduces to the defendant’s self-edification and satisfaction is a more effective deterrent to recidivism than simply having a job;
  • Community service is an effective means of recidivism reduction;
  • Internet offenders who are convicted of child pornography are not at high risk for contact offenses against children.

In the Absence of a Viable (Affirmative, Mitigating or Constitutional) Defense

What happens if you don’t have a legally viable defense? You must know that due to the serious nature of the offense and the attendant stigmas, the Bail Reform Act contains a presumption that the individual should be detained pending trial, without setting a bond. However, in many instances, the Joslyn Law Firm has secured the release of individuals pending trial, overcoming the Bail Reform Act’s presumption is not a given.

Moving forward, if you simply observed the material or depictions while opening a digital file or folder, without knowledge of its contents, there may be hope of establishing a defense. To support that contention, it may be helpful to submit to a polygraph examination.

However, if your child pornography attorney determines that you cannot craft a viable defense, you must shift your focus to sentencing. When imposing the sentence, the court may consider a psychological analysis submitted by the defendant and/or a demonstration that the defendant is on the road to rehabilitation.

 


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Evidence in Child Pornography Cases

The quality of evidence, how law enforcement obtained it, and whether the methods used were lawful are crucial elements in child pornography cases.

The evidence must point to a reasonable justification for a search and seizure.

Prior to a search, law enforcement must have a valid warrant, signed by a judge or magistrate.

The warrant must particularize the place(s) where the search will be conducted, the evidence to be seized, and the scope of the search (i.e., how broad or limited the search will be).

If law enforcement conducts a search without a warrant or with a defective warrant, any evidence seized as a result will be illegal and subject to suppression. As your attorneys, the Joslyn law firm investigates whether the authorities’ conduct was lawful and examines the evidence on which the warrant was based. If the warrant was defective or we detect any questionable information, we will seek to suppress such unlawfully obtained materials.

Review — Questions for Consideration: 

  • Did the officers have a valid search warrant when they entered your home or other dwelling over which you had control?
  • Did the police exceed the scope of the warrant (i.e., did they seize materials that were not authorized or specified in the warrant)? 
  • Did you inadvertently type a web address into a search engine or field without realizing that you were off by one letter and unknowingly downloaded the material? 
  • Did inappropriate spam or unwanted pop-ups cause this nightmare?
  • Did you know that the people depicted in the obscene material were under the age of 18? Were the subjects in fact under 18? 
  • Were you framed? (i.e., did someone else falsely accuse you and set you up by clandestinely downloading the illegal material on your computer and then anonymously call law enforcement)?
  • Was the material obtained and/or used for a bona fide literary, educational, scientific or forensic purpose?

 


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Experts in Child Pornography Cases

Experts in child pornography cases are especially relevant for a variety of purposes.

From defendant’s local computer, they make the following determinations:

  • What kind of material was present?;
  • What portion of the material was child pornography (i.e., was some illegal material embedded or was the totality of the seized material illicit?);
  • Was the material deleted or not?
  • Where was the material stored (e.g., either on a computer or handheld device)?;
  • When was the material stored there and by whom (when did the defendant last access the computer or device?);
  • How did it get there (e.g., email, chat rooms, news groups, Skype, lime wire or other peer-to-peer networks?).
  • Examination of Internet browsers and cache;
  • Was/were the image(s)located in unallocated space and, therefore, not viewable by the defendant (who may not even have known that the illicit material was there? United States v. Flyer (February, 2011).
  • In evaluating the viability of the prosecution’s case, experts do the following:
  • Duplicate the prosecution’s work to ensure and verify the accuracy of their findings, the thoroughness and completeness of the evidence;
  • They conduct a psychological analysis to determine defendant’s mental state and propensity to commit the crime at issue;
  • Determine whether the forensic analysis was accurate (was every germane fact included?);
  • Decide whether or not exculpatory evidence was overlooked;
  • Evaluate polygraphs;
  • Examine standard procedures and the validity of claims in the forensics report;
  • Pay heed to search results, keywords, Internet history files, link results, etc.

         These efforts can, potentially, facilitate the building of your defense and the possibility of obtaining a “not guilty” verdict.


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Common Questions and Answers in Child Pornography Cases

Q. Precisely what is child pornography?

A. Child pornography is the exploitation of minors under the age of 18, through the possession, production, or distribution of sexually explicit materials depicting them. The definition of what constitutes “sexual” depictions slightly differs under state and federal law, but the general definition embodies the idea that any kind of visual representation that appeals to the prurient (sexual) interest (e.g., sexually explicit acts or the simulation thereof) is tantamount to child pornography. This type of conduct can lead to extremely severe penalties. Therefore, if you are targeted for the commission of the crime of child pornography, you need an experienced child pornography attorney from the outset.

 

Q. What is pandering involving a minor?

A. Pandering is the unlawful, possession, production, and distribution of sexually explicit materials involving a minor (i.e., an individual under the age of 18), with knowledge of the nature and content of said material.

 

Q. What is the legal definition of “pandering?”

A. Solicitation of customers for prostitution and recruitment of prostitutes for hire.

 

Q. What is pandering sexually oriented material?

A. Pandering sexually oriented material is the unlawful knowing possession, production, and distribution of materials involving minors that appeal to the prurient (sexual) interest that do not possess any valuable scientific, medical, literary, or artistic value.

 

Q. What is an importuning charge?

A. Under ORC § 2907.07(A) “No person shall solicit a person who is less than thirteen years of age to engage in sexual activity with the offender, whether or not the offender knows the age of such person.”

 

Q. What does dissemination of matter harmful to minors mean?

A. Any book, pamphlet, magazine, or printed matterhowever reproduced, or sound recording which contains any mattercontaining explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, when taken as a whole, is harmful to individuals under the age of 18.

 

Q. What does “disseminate” mean?A

A. Spread, disperse, or circulate (usually of materials — photographs, pamphlets, film, videos, CDs, DVDs, etc.).

 

Q. How does a person get caught engaging in the crime of Internet child pornography?

A. Typically, law enforcement searches the Internet for the material in question and traces downloads and other file sharing software through an IP address. In other cases, law enforcement poses as individuals seeking to engage in the sharing or distribution of child pornography with others.

 

Q. Can I be charged with child pornography even if I did not take or create the images?

A. Yes, being charged with the offense not only involves the creation and/or production of the images, but possession and distribution of sexually explicit depictions of minors. The actual production of such material can lead to devastating allegations of child abuse and sex trafficking.

 

Q. What kinds of charges can be brought in Internet child Pornography cases?

A. Charges usually target you with possession and/or distribution of child pornography. At times, the lines between possession and distribution can be blurred, due to file sharing software that disseminates data from files stored on your computer or other electronic devices that can be accessed by others. In those cases, you can be charged with the crime of distribution of child pornography. For this reason you require a skilled attorney that can craft a cogent defense, potentially leading to an outcome in your favor.

 

Q. Can an individual be charged with child pornography even if it was received accidentally?

A. While the specific law on this point differs in individual jurisdictions, the general answer is “yes.” Usually, law enforcement makes an arrest and charges are imposed before allowing the person to explain that he or she accidentally downloaded the illicit materials. This can lead to devastating damages to your reputation and social standing. For these reasons, you require a child pornography attorney versed in child pornography statutes, technology and computer forensics. The Joslyn Law Firm is at your service, 24/7 to answer your questions, evaluate the specifics of your case, and assist you in fashioning the appropriate defense.

 

Q. Can prosecution be avoided by erasing the illegal material?

A. The answer depends on the prosecuting agency. Oftentimes, forensics experts know how to search for and retrieve information that you believe was erased. In these instances, if you opened and viewed the material, you will be prosecuted even if you have immediately erased it.

 

Q. What determines whether an individual is charged in federal or state court?

A. It all depends on the arresting agency.  For example, if the local county or city police department conducts the investigation and makes the arrest, most likely, you will be prosecuted by the county District Attorney’s office.  If a federal agency (e.g., the FBI or the Secret Service) engages in the investigation and makes the arrest, then the United States Attorney’s Office will typically prosecute the matter in federal court.  At times, an individual will be charged in a federal court in a different state, if the charges allege that the person shared Internet child pornography with someone located in that state. The federal sentencing guidelines set the mandatory minimums and maximums in federal court, depending on the facts of your case.  In Ohio state court, the sentencing ranges depend on the level of your felony charge, which is based on the individual facts of each case.

 

Q. How can the Joslyn Law Firm Assist in the Overly Harsh Imposition of Penalties Under the Federal Guidelines?

A. Despite the stringent rules of the Federal Guidelines, it is possible to receive a sentence that falls outside of — and below — the guidelines. To be able to achieve a downward variance, a defendant requires expert representation in this area of the law. It is imperative that you have proper counsel to avoid being at a disadvantage. In relying on the Joslyn Law Firm to handle your case, you will receive the most highly skilled advocates, with years of experience in the field.

Although there is some dissatisfaction among judges with the guidelines, specifically with regard to the degree of seriousness of the offense and the danger that a given defendant may pose to society, the guidelines are still very much in existence and far from being abolished or rendered insignificant. Harsh penalties are still in place with regard to child pornography offenses, and judges are still bound by them, even given the prevailing objections at play.

 

Q. What are the challenges in sentencing in child pornography cases

A. Courts have been increasingly troubled by the sentencing disparities at issue in child pornography cases, and have emphasized that while society seeks to protect the innocent from the punishable conduct, a dialogue about the principles of criminal justice should not be undertaken in individual cases where lives are at stake. Judge Kathleen McDonald O’Malley in United States v. Stern (590 F. Supp. 2d 945 (N.D. Ohio 2008) noted that sentencing procedures “…sometimes appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individualized situation … This is not a theoretical exercise.” Judge O’Malley concluded, that “The Court, accordingly has attempted to ensure that its sentence avoids unwarranted sentencing disparities to the greatest degree possible while still hewing to its view that this individual defendant must be punished with a term of imprisonment.” 

 

The call for balance was also echoed in the voice of United States District Court Judge Jack B. Weinstein of Brooklyn, NY, who pledged to challenge laws that penalize defendants who pose absolutely no risk to society, and subject them to what he calls “the unnecessary cruelty of the law.” He explains that “We’re destroying lives … At the most, they should be receiving treatment and supervision” ("Defiant Judge Takes On Child Pornography Law." The New York Times. N.p., 21 May 2010. Web. 1 May 2018.) 

Q. What are the penalties for possession or distribution of Child Pornography

A. Potential penalties can range from probationary periods, incarceration, or a combination of both, and largely depends on whether the penalty falls under state or federal law.  Incarceration depends upon a variety of factors.  Some Internet child pornography cases tried in federal court do not have a mandatory minimum sentence, while others have 5 or 10 years.

 

Q. Does a conviction of child pornography possession or distribution require mandatory Sex offender registration under the Sex Offender Registration Act (SORA)?

A. Yes. Under both state and federal law, a conviction for receipt, possession or dissemination of Internet Child Pornography will require that the convicted person register under SORA.  The level of registration depends on the outcome SORA hearing, in which the judge, after hearing arguments from both sides, decides whether the defendant is a Level 1, 2 or 3 Sex Offender.


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Child Pornography Defense Resources

Child Pornography Crimes in Federal Court — Visit the United States Justice Department’s web site for general information from the Child Exploitation and Obscenity Section (CEOS) about child pornography crimes, prosecution in federal court, and efforts to deter and eradicate the crime of possession, distribution, or production of images involving child pornography. Learn about how child abuse prosecutions have changed over time, how and why these crimes are so devastating and life-altering to the victims of such crimes.

Growing Judicial Rebellion Against Harsh Sentences for Child Pornography OffensesThis scholarly article by Senator Arlen Specter and Linda Dale Hoffa explains the difficulties in child pornography sentencing procedures and discusses whether the laws should 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).

Sentencing Commission Issues Report Assessing Penalties for Child Pornography Offenses - Visit the United States Sentencing Commission’s web site to find a February 27, 2013 press release, which details the Commission's comprehensive report to Congress and examines federal sentencing policies in child pornography cases.

Other Resources 

Justice DeniedThis is a web site devoted to the wrongly convicted, offering practical self-help tips to prisoners and their families.

The Sentencing Project — a web site dedicated to fostering quality of life for prisoners, minimizing disenfranchisement, racial disparity in exonerations, and encouraging prisoners’ reintegration into society after serving long-term-to-life prison sentences.

Prison Policy Initiative — a web site that discusses the vast harm imposed by mass incarcerations and the importance of maintaining a just society.

Bureau of Justice Statistics — provides data on every type felony on both the state and federal levels.

CRS Report for Congress — discusses the Federal Sentencing Guidelines, the meaning of determinate and indeterminate sentencing, departures from the guidelines, and judicial discretion, among other topics.

Legal Information Institute — a free resource for reading and understanding the governing laws.

The United States Department of Justice — This link is an essential resource for understanding the widespread prevalence of child pornography, its nature, and highly deleterious effects on victims. 

The United States Sentencing Commission — explores USSG §2G2.2, the present guideline for non-production offenses, such as the receipt, possession, transport, 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 — comprises a coalition of thirty-four leading banks, electronic payment networks, and Internet Services Companies, dedicated to ending commercial child pornography. 

Internet Watch Foundation (IWF) — a site at which to anonymously and confidentially report child sexual abuse content, criminally obscene adult content, and/or non-photographic child sex abuse images. 

Internet Crimes Against Children Task Force (ICAC) – a national network of sixty-one coordinated task forces, representing over 3,500 federal, state, and local law enforcement and prosecutorial agencies, engaged in investigating and prosecuting persons involved in child abuse and exploitation via the Internet.

Virtual Legality: An Overview of Your Rights and Responsibilities in Cyberspace —an article elucidating the rights and limitations of Internet users (particularly in a university setting), an analysis of copyright laws and definitions of libel (written defamation), invasion of privacy, obscenity, child pornography, and “indecency,” hacking, and Ohio State University policies.


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Child Pornography News and Article

Defending Child Pornography Cases — This article by Robert Perez eloquently presents the problems child pornography defense attorneys face in our era of Internet technology, specifically in defining what constitutes “possession,” the requirement of “knowledge” and the definition of “obscenity” in the vast world of cyber data.

Trading in Child Pornography, Images and Videos in Our Colleges — This article poignantly reveals the shocking truth about the perpetration of child pornography offenses in our colleges and universities and other forms of child abuse in our communities by the very individuals whom we revere and trust in our daily lives. 

A Former Delaware County Deputy Gets 15 Years for Child Pornography — A Columbus Dispatch article on a former deputy’s commission of child pornography in a paid chat room, sentenced to fifteen years in prison.

Ex-teacher gets 6 years for child pornography — A Columbus Dispatch article on a Dayton Ohio elementary school teacher sentenced to six years in prison for the commission of child pornography offenses. The teacher admitted that he was “grateful” to be caught, as he would not have ceased the illicit conduct on his own.

Former Watterson teacher gets 25 years for using student in porn — A Columbus Dispatch article about a former Watterson teacher who robbed a young student of his innocence by using him in the commission of child pornography.

Columbus Doctor Facing Child Porn Charges Pleads Guilty – A 2017 10TV article about a Franklin County chiropractor who downloaded and traded in child pornography. If convicted, the doctor’s license will be suspended.

West Chester man sentenced for child pornography charges: I am ashamed — A Journal-News article about a fifty-eight-year-old first-time offender, with no priors except OVI arrests, who plead guilty to six counts of pandering sexually oriented matter involving minor children, a fourth-degree felony. The man was placed on probation and classified as a Tier II sex offender and required to register his residence with the sheriff’s office every 180 days for the next twenty-five years.

Southwestern City Schools Teacher Indicted on Child Pornography Charges — On May 21, 2018, Michael Jerome Walsh (61), a middle school teacher, was indicted on a total of nine counts of pandering sexually-oriented matter involving a minor while in the employ of Pleasantville Middle School. Between November 2014 and April 2017, while at home, Walsh allegedly downloaded multiple videos and images of minors engaged in illegal sexual activities with adults. His arraignment took place on June 4 2018 in downtown Columbus, Ohio.


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