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Common Questions About Child Pornography Charges

Facing child pornography charges in North Carolina can be terrifying, particularly when you have no knowledge of how these charges work or what you should be expecting from this point forward. Our experienced North Carolina child pornography defense attorneys understand how difficult it can be, both intellectually and emotionally, to wrap your mind around state or federal criminal charges connected to the possession or distribution of child pornography, and we want to do everything we can to assist you with your defense. We have years of experience providing aggressive counsel to defendants facing child pornography and related sex crimes charges, and we want to provide you with answers to some of the most frequently asked questions we hear concerning child pornography charges in Raleigh and throughout North Carolina.

 

Q: What are Child Pornography Charges?

A: There are many different types of criminal charges related to child pornography under North Carolina state law and under federal law. These offenses can include charges related to the creation, possession, and distribution of child pornography, and in some cases these types of charges can be brought in conjunction with other related sex crimes charges such as internet solicitation.

In North Carolina, child pornography charges are typically brought under laws that criminalize displaying or disseminating materials harmful to minors, and sexual exploitation of a minor in the first, second, or third degree. Third-degree sexual exploitation of a minor requires only the possession of material that contains a visual representation of a minor engaged in sexual activity. Second-degree sexual exploitation of a minor includes any exchange of the same material. First-degree sexual exploitation of a minor includes creating, facilitating, or permitting the creation of sexually explicit material involving minors (N.C. Gen. Stat. §§ 14-190.14-14-190.17A).

At the federal level, child pornography charges will typically be brought under the specific offenses of sexual exploitation of children (the offense for the production of child pornography (18 U.S.C. § 2251)), activities related to material involving sexual exploitation of minors (the offense that includes possession and distribution of child pornography (18 U.S.C. § 2252)), or production of sexually explicit depictions of a minor (18 U.S.C. § 2260).

To be clear, there is no single “child pornography” criminal charge in North Carolina under state or federal law, but rather a variety of offenses that can be charged when a person is alleged to have possessed, produced, or distributed child pornography.

 

Q: Are Child Pornography Charges State or Federal Charges?

A: Child pornography charges can be brought as state criminal charges or as federal charges, although many child pornography charges are federal offenses. Since possession and distribution of child pornography frequently involves the internet, those charges will almost always be federal in nature since they affect interstate commerce. As we noted above, even if you do not leave your home and do not correspond with another person or entity outside the state of North Carolina, the mere fact that your computer, the external hard drive you are using, or any other electronic device at one point traveled in interstate commerce (in the production of the electronics parts, in their sale to the retail store, etc.) means that an act on the internet involves interstate commerce.

 

Q: Why Does it Matter if I Am Facing State or Federal Charges for Child Porn?

A: Whether you are facing state or federal charges will affect your defense strategy since you will need to defend against specific elements of either state or federal law.  Further, you will need an attorney on your side who has experience handling defenses for the type of charges you are facing. In addition, the penalties can differ in the event of conviction, and you should be prepared. You should also know that criminal charges for federal offenses will be heard in federal court, while criminal charges brought under North Carolina state law will be heard in state court.

 

Q: Why Can the Federal Government Charge Me for Private Computer Use on My Own Device in My Home?

A: While you might think that it is unreasonable or even unlawful for the federal government to bring one or more of the child pornography charges discussed above when you have used only your personal computer and have done so within the privacy of your own home, it is critical to understand that these charges do not require you to leave your home in any capacity and do not require you to engage directly within another person in order to face charges. Just as it is unlawful to possess certain controlled substances within the privacy of your own home, it is also unlawful to possess certain types of explicit images that meet the definition of child pornography.  Even if you did not leave your home to come into possession of such materials, it is essential to understand that use of the internet or the U.S. mail in obtaining or distributing any of these materials is sufficient to result in federal criminal charges.

Indeed, as the U.S. Department of Justice (DOJ) explains, “federal jurisdiction is implicated if the child pornography offense occurred in interstate or foreign commerce,” which “includes, for example, using the U.S. Mails or common carriers to transport child pornography across state or international borders.” Further, the DOJ clarifies that “federal jurisdictional almost always applies when the Internet is used to commit a child pornography violation.” Why is that the case? According to the DOJ, “even if the child pornography image did not travel across state or international borders, federal law may be implicated if the materials, such as the computer used to download the image or the CD-ROM [or other external hard drive, e.g.] used to store the image, originated or previously traveled in interstate or foreign commerce.”

 

Q: Can I Face Child Pornography Charges if I Did Not Take the Photos or Videos?

A: Yes. Under both state and federal law, you do not need to have been involved in any capacity with creating or producing child pornography in order to face very serious charges and steep penalties. Mere possession of child pornography—whether in physical form such as a photograph that has been reproduced or printed out, or digital images stored on your computer or on an external hard drive, are sufficient for you to face charges related to the possession of child pornography.

To be clear, regardless of whether you have any connection to the party who produced or created images that have been identified as child pornography, and regardless of whether you had any direct contact with an individual in order to obtain the images, the mere possession of the images or other related material is enough to face serious child pornography charges.

 

Q: Can I Face Child Pornography Charges if I Did Not Know I Was Opening an Attachment That Included Pornographic Images?

A: It depends on the circumstances. A potential defense strategy when you are facing child pornography charges solely for possession may be that you had no knowledge of the images and that you did not know you were opening an attachment or downloading a file that included images of child pornography. However, in order to rely on this type of defense, it will be critical to work with an experienced North Carolina sex crimes defense attorney who can present evidence that demonstrates clearly that you had no knowledge of the files or that you downloaded them accidentally. Without this kind of clear evidence that proves your lack of knowledge, you might not be able to beat possession charges.

If you are facing additional child pornography charges for the distribution of child porn, for example, or other explicit materials, this defense will be much more difficult to employ. Although there may be scenarios in which a person unknowingly forwards an email in which pornographic images are embedded, such a defense strategy can be more difficult to use, particularly without assistance from an experienced criminal defense lawyer.

 

Q: Is it a Defense if I Did Not Know the Person Was Underage?

A: It depends upon the circumstances, once again. In some circumstances, a person may believe that she or he was corresponding with an adult over the internet and may have received images that a reasonable person would have believed were images of an adult (and not images of a minor). In such situations, it may be possible to prove that you did not know that the images you possessed were of a minor or an underage person, although this may not be a complete defense to possession charges. Your lawyer can assess the particular circumstances of your case to determine whether lack of knowledge about the age of the person depicted in the images could be a potential defense in your case.

 

Q: Are Internet Solicitation and Child Pornography the Same Thing?

A: No, although the charges can occur in conjunction with one another. Generally speaking, child pornography charges involve the possession, production, or distribution of sexually explicit images of minors, which may include photographs, videos, undeveloped film, or videotape containing such images. Charges can even involve digitally or computer-generated images that depict “sexually explicit conduct involving a minor.” Solicitation offenses typically involve attempts to engage in sexual activity with a minor, which may involve merely talking to a minor in sexually explicit ways or seeking sexual activity with a minor through electronic communication or in person.

While these types of offenses are distinct from one another, there are numerous scenarios in which defendants face both child pornography and solicitation charges.

 

Q: Will I Have to Register on the Sex Offender Registry?

A: If you are convicted of a child pornography offense, the answer is yes. Merely facing charges related to the possession, distribution, or production of child pornography will not require you to register on the sex offender registry, which is why it is so critical to beat the charges you are facing. However, if you are convicted, you will be required to submit a variety of information as part of the sex offender registry requirements, which will place you on a state sex offender registry and on the national sex offender registry. If you are convicted in North Carolina but move to another state, you will still be required to register on the sex offender registry in your place of relocation, and your information will continue to be stored and available on the national sex offender registry. What this means is that anyone who seeks information about sex offenders in your area will be able to access your photograph, address, and the details of your conviction.

 

Q: What Kind of Penalties Will I Face if I am Convicted?

A: Penalties for child pornography convictions are extremely serious. Federal penalties tend to be much more severe than state penalties, although penalties in North Carolina state also include extended prison terms. If you face child pornography charges in connection with the production of child pornography, you will likely be charged with first-degree sexual exploitation of a minor and will face Class C felony penalties that can include up to 92 months (more than 7.5 years) in prison for a first-time offense. Federal penalties often involve a minimum of 15 years in prison and up to 30 years of imprisonment, even for a first-time offense.

According to the U.S. Sentencing Commission (USSC), more than 99% of people convicted of federal child pornography charges are sentenced to prison, and the average length of the sentence is 104 months (more than eight years in prison).

 

Contact Our Experienced Child Pornography Defense Attorneys in North Carolina

Nobody should face child pornography charges, whether at the state or federal level, without assistance from an experienced child pornography defense attorney in North Carolina. Not only can child pornography charges result in years or decades of imprisonment upon conviction but having these kinds of charges on your record can be life-altering and forever damaging even after the terms of the criminal sentence have been completed. Our aggressive criminal defense attorneys can evaluate the facts underlying your arrest and child pornography charges, and we can begin working with you today to develop the strongest possible defense strategy in order to seek an acquittal.

Given our years of experience handling a wide variety of state and federal criminal defenses, including defending clients in child pornography cases, we understand the intricacies of these particular types of sex crimes charges and can help you to understand your defense options. Contact the Roberts Law Group, PLLC to learn more about how our firm can assist you with your child pornography defense.

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