Child pornography has become a high priority target for federal and state law enforcement authorities. The Internet has radically changed how child pornography is reproduced and distributed; the availability of Internet Child Pornography (“ICP”) has skyrocketed. Surveillance and other investigative
operations are monitoring the online community to ferret out the production, dissemination and receipt of such materials. Those who are arrested and prosecuted face serious punishments in state and federal courts. There’s almost an assumption of guilt in these cases today. But not everyone accused of an ICP crime deserves to go to prison or to be branded a sex offender; some people arrested are actually innocent of wrong-doing. This firm has successfully handled the defense of ICP cases in both state and federal courts. Being accused of any crime, especially one with the societal stigma and dire consequences of an ICP crime, is a harrowing experience. We hope this list of questions and answers with CMG criminal defense lawyer Daniel Russo, Esq., will help you better understand the current legal landscape should you or a loved one ever be accused of an ICP offense.
Q: What material exactly is “child pornography”?
A: While the wordings of the federal law and various state statutes differ, the general meaning is roughly the same. Photographic images or videos that depict a minor engaging in sexual conduct are child pornography. What constitutes “sexual” content may be open to dispute, and each term in the statutes is defined individually, however the general bottom line is that images of an underage person(s), doing something sexual in nature, are child pornography and the possession, receipt and dissemination of such materials can lead to serious criminal consequences. There may be factual evidence or legal arguments that particular materials are not, under the circumstances, ICP. Having an attorney with an understanding of how these statutes are applied and with experience in defending these types of cases is crucial from the outset.
Q: How does someone usually get caught with ICP?
A: While law enforcement investigatory tactics can differ from agency to agency, generally ICP investigations begin with a law enforcement agent searching the Internet for ICP or someone offering to exchange ICP. In the former case, the agent will search the Internet for images and, upon finding them, will trace the images to a “file-sharing” computer by way of an IP address. In the latter scenario, an undercover agent will troll known ICP websites posing as an individual looking to share or trade an ICP collection with someone else.
Q: Can I be charged with ICP even if I had nothing to do with taking the pictures or creating the images??
A: Yes, and most ICP cases both federal and state involve the simple possession or sharing of ICP with absolutely no allegation of producing the material. The conduct at issue in most cases isn’t making ICP, it’s having it or sharing it. The actual production of ICP can involve horrific allegations of child abuse and sex-trafficking.
Q: What charges can be brought in ICP investigations?
A: The simplest ICP charge involves possessing ICP. Whether it’s on a computer, cellphone, or a video, possessing ICP can result in arrest, leading to possible jail time, probation, or a combination of both. A more serious charge than that of simple possession is the charge of disseminating or sharing child pornography. Generally, sharing child pornography comes with mandatory minimums of incarceration. The line between possession and dissemination is often blurred because of the use of “file-sharing” websites. Even if you don’t “send” ICP to any particular person, just having ICP on your computer in a manner in which the files can be accessed by other computer users can be viewed as not only possessing it, but disseminating it. An experienced attorney can help you to understand the law as it relates to the specific facts of your case, and can seek to fashion legal arguments in your defense.
Q: Can I be charged with possessing ICP even if I received it accidentally?
A: While the specific law on this point differs from one jurisdiction to the next, the very short general answer to this question is, yes. In many cases, the accused is arrested and charged before an argument can be made that the ICP was downloaded accidentally. With these types of arrests, there can be devastating damage to reputation and social standing unless your lawyer knows how to put forth and back up the argument that the possession – or in some cases, the dissemination – was accidental. Doing so requires knowledge not only of the application of ICP statutes but also of technology and computer forensics.
Q: Can I be prosecuted if I receive ICP and immediately erase it?
A: Frankly, it depends upon how the prosecuting agency defines the term “erase.” Often times what you think you may have “erased” on your computer is easily retrievable by someone who knows what they doing. The agents (state or federal) who do the computer forensic work know how to look for and retrieve things you may think you erased and no longer exist. If it can be proven that you opened and reviewed ICP before “erasing” it, you can absolutely be prosecuted for its possession. This can be the case even if you didn’t know the file contained ICP when you opened and reviewed it, and even if you immediately erased it after looking at it.
Q: What determines whether I will be prosecuted in federal court as opposed to state court?
A; It all depends on the arresting agency. For example, if the local county or city police department does the investigation and makes the arrest, you will likely be prosecuted by the county District Attorney’s office. If a federal agency like the FBI or the Secret Service does the investigation and makes the arrest, then the United States Attorney’s Office will likely prosecute the matter in federal court. Note that it is not uncommon to be charged in a federal court in a different state, if the charges allege that you shared ICP with someone located there. The federal sentencing guidelines set the mandatory minimums and maximums in federal court depending on various factual aspects of the case. In state court here in New York, the sentencing ranges depend on the level of felony you are charged with. Again, this is based on the facts of the case.
Q: If I’m convicted of possessing or disseminating child pornography, what sort of prison time might I be facing?
A: Potential penalties can range from probationary periods to periods of incarceration to a combination of both. Usually probationary periods will last from 6-10 years. As for periods of incarceration, it depends on a number of factors. Some ICP cases in federal court have no mandatory minimum sentence, some have 5 years, and some have a mandatory minimum of 10 years.
Q: If I am convicted of possessing or disseminating child pornography, would I have to register under the Sex Offender Registration Act (SORA)?
A: Yes. Under both state and federal law a conviction for receipt, possession or dissemination of ICP will require that the convicted person register under SORA. The level of registration depends on the outcome of what is commonly known as a SORA hearing where the judge, hearing arguments from both sides decides whether the defendant is a Level 1, 2 or 3 Sex Offender.
Q: If SORA registration is required, what is the length of time in which one would have to be registered?
A: This depends on the outcome of the SORA hearing. If deemed a Level 1 Sex Offender, a person must register for 20 years. If deemed a Level 2 or a Level 3 Sex Offender, registration is for life. As such, SORA hearings should not be ignored by counsel as an additional step after the client is convicted. These hearings can make a huge difference in a client’s quality of life after a conviction for possessing or sharing ICP. Make sure your lawyer is thoroughly familiar with how the SORA impacts upon your particular case.
Dan Russo has handled both federal and state matters alleging sexual offenses including child pornography accusations. Feel free to call Dan and the lawyers of Collins Gann McCloskey & Barry PLLC should you have any questions about ICP laws or the SORA. We are available 24/7 for emergencies at (516) 218-5131.