Possession of Child Pornography, Child Sexually Abusive Activity

“Child sexually abusive material” (aka: child pornography) means any depiction, picture, film, slide, video, electronic visual image, computer or computer-generated image or sound recording which is of a child (under age 18) or appears to include a child engaging in a sexual act. An image may also include unexposed film or a negative.

A separate criminal charge may be supported for each image that is possessed or stored on a device. An image may include deleted files.

Child pornography crimes are punishable under state and federal laws. All child pornography crimes, including soliciting a minor for immoral purposes, are felonies. In addition, both local and federal (FBI), law enforcement task forces operate sting and undercover operations to crack down on child pornography, shut down websites that are predatory or exploit children and investigate computer related crimes. In 2009, the Macomb Sheriff Department implemented a computer crimes unit known as Macomb Area Computer Enforcement (MACE).

How do the police catch people with child pornography?

Special police units monitor the activity of visitors to inappropriate file sharing, peer to peer (P2P), websites and chat sites. Law enforcement officers may impersonate a child, or a person interested in buying or trading child pornography. Once approached on-line by someone soliciting sexual acts from a minor or child pornography, the arrest process is initiated. The police are able to track the identity and whereabouts of the person by contacting the web provider with an Internet Protocol (IP) address. This is followed by an arrest of along with seizure of computer equipment, smart phones, storage devices, photographs, videos and other related evidence. On the law enforcement side, once a computer or storage device is seized, a computer forensics technician will begin the process of locating images and reviving deleting images.

ABC News reported the following on January 30, 2012 in an online newscast, Digital Detectives Dig Through Data Deluge: “Computer files or remnants of such files can be recovered months or even years after they have been downloaded onto a storage medium, deleted, or viewed via the Internet.”

Penalties for Engaging in Child Sexually Abusive Activity or Possession of Child Pornography

Michigan’s child pornography statute can be found at MCL 750.145c. The penalties for child pornography are dependent upon whether a person is engaged in production, distribution or possession:

• Possession of Child Sexually Abusive Material: A person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both.
• Distribution of Child Sexually Abusive Material: A person who distributes or promotes, or finances the distribution (or conspires, attempts, or prepares) any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both.
• Production of Child Sexually Abusive Material: A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both.

The Michigan Penal Code has other statutes which make it crime to solicit a minor for immoral purposes or use a computer to commit a crime.

Potential Defenses to Fight a Child Pornography Case

A person charged with possession of child pornography may be entitled to advance one or more of the following defenses. The expertise of a computer forensic technician may be necessary to assist with technical aspects of certain defenses.

• Illegal Search: Pursuant to the 4th Amendment of the United States Constitution, a person is entitled to be free from unreasonable government intrusions, searches and seizures. When evidence is illegally seized, an attorney may file a motion to suppress the evidence which can lead to dismissal of the charges.
• Lack of knowledge of possession: This defense may be raised when the content is found on a computer but it was not downloaded or known by the accused party (planted by another party).
• Content is not child pornography: Federal law defines a minor as a person under the age of 18. Sexually explicit conduct is defined at 18 USC 2256. It is a defense to criminal charges when the content is not found to fit within the definition of child pornography.
• Unintended possession: An inadvertent or accidental landing upon an unintended website can result in the downloading of content. A similar defense may exist when a person, intending to view adult pornographic material, is misdirected to a page or site containing child pornography. A computer forensics technician may be able to determine that the website was only viewed for a brief period and that the computer does not show a pattern or other searches for inappropriate material.
• Entrapment: Entrapment may be a viable defense when law enforcement officials engage in persistent and persuasive tactics that encourage an otherwise law abiding person to do something that he or she is not otherwise inclined to do.

Let us Protect Your Legal Rights!

Retaining a criminal defense lawyer should be your first priority if you are the subject of a criminal investigation or face child pornography charges. Law enforcement officers follow a regimented pattern in the way that they investigate a person accused or arrested for a crime. Once the police have gathered evidence, they will attempt to get a confession from the accused party. Even when the accused party denies wrongdoing, the police will use the interview as an opportunity to establish pertinent facts that may be incriminating. Following an interview, the accused will be asked to submit to a polygraph examination.

This You Tube video has had over 6,000,000 views and is an excellent resource on your 6th Amendment right to remain silent.

ABDO LAW, established in Macomb County in 1980, provides unrivaled legal services to those that seek highly rated criminal defense lawyers. We believe that every client has a unique situation and deserves to be treated with respect and dedication to achieve the best possible result in the Michigan court system. In our 35 years of practicing criminal law, we have amassed 1,000’s of legal victories in every type of criminal matter.

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