Estimated reading time: 8 minutes
Key Takeaways
- Child Pornography Lawyer Thomas Gallagher outlines Minnesota laws and defenses.
- Most child porn prosecutions charge both possession and misleading dissemination claims.
- Even though these crimes don’t involve penetration or touching, penalties are more severe.
- Technological evidence can help or hurt the prosection.
- Number and nature of images can influence guilt or innocence.
- Sentencing issues include consecutive sentences per image, and sex offender treatment vs. prison.
By Child Pornography Lawyer Thomas Gallagher. When you have been a target of a police sting or search warrant, damage has been done. Whether guilty of something, or wrongly accused; a person feels traumatized, overwhelmed and hopeless. But a good Defense Lawyer like Thomas Gallagher can step in, help to stop the damage and begin the rebuilding process.
The sooner you get good legal help, sooner you’ll feel better; and the better the outcome will be. Attorney Thomas Gallagher can help before criminal charges or after. So let’s take a look at the law and defenses.
A child pornography lawyer sees two common charges, possession and dissemination.
Possession: Child Pornography Lawyer
First, child pornography is a crime to “possess” in Minnesota, under state and federal laws. Most child porn today is in electronic form. So, it’s on computers, smart phones, electronic storage devices and in the internet cloud. And search warrants and searches target all of these.
Dissemination: Child Pornography Lawyer
But, “Dissemination” is also a crime. And prosecutors typically charge both “possession” and “dissemination.” Because many people in recent years get these kinds of images using internet file sharing programs.
The legislature intended the dissemination law to target those profiting from its production or sale. But today, most dissemination charges are not against people who produce these images. Rather, they target compulsive collectors using file sharing programs, on a technicality. So a child pornography lawyer can help balance the scales.
In Minnesota, prosecutors charge most child porn cases under Minnesota Statutes § 617.247, titled “POSSESSION OF PORNOGRAPHIC WORK INVOLVING MINORS.”
Both possession and dissemination crimes charged under this statute are felonies. “Possession of child porn” normally carries a five-year maximum sentence, per image. And “dissemination of child porn” normally carries a seven-year maximum sentence, per image.
Sentencing is more complex than that, however. The prosecutor can abuse the law and manipulate the sentence. The prosecution has the ability to unfairly force a disproportionate sentence. And this is because these cases typically involve a large number of images; and they can make a separate charge for each image.
Proportionality: punishment v. crime
One of the most glaring injustice of child porn prosecutions is their violation of the proportionality principle. We believe that the punishment should fit the crime, at sentencing. So your child pornography lawyer must strongly advocate for proportionality and fairness.
Child Pornography is a non-touch sex crime.
Three types of sex crimes
We can divide sex crimes into three types:
- penetration,
- sexual contact,
- non-touch
Most people believe that the first two types are more egregious. Yet, the sentence in a first-time child porn image case can exceed that of a person convicted of stranger-rape-by-force.
The laws in this area in need of reform. Every child porn case we have seen involves multiple images, sometimes hundreds, often thousands. So, people who commit this crime often have a collector compulsion, that results in a large number of images.
Combine that truth with legally permissible multiple convictions for each image, and consecutive sentencing. We then end up with long, cruel and unusual punishments of hundreds of years prison time. The practice of “Hernandizing” convictions for multiple images, to artificially inflate the “criminal history score” of a first-time offender; is a big part of the problem. So, a good child pornography lawyer is essential.
What is criminal “possession?”
The law of criminal possession applies here; as in other areas where criminal law makes “possession” of a contraband thing into a crime. The prosecuting attorney needs to have evidence that the accused person had “knowledge,” and “dominion and control” over the prohibited thing. But ownership is not evidence of possession.
And past possession is not the same as present possession or possession at a claimed time and place. But only your child pornography lawyer will help the jury understand these issues.
Images: Child Pornography Lawyer
Though the statutes’ language is specific for good reason; we can make some generalizations about the nature of the images prohibited.
The images both must be pornographic, and must involve a minor. And these content-based censorship laws directly punish thought, not action. So, pictures of murder are not a crime. But pictures of sex crimes are.
Does the image depict a person of a forbidden age? Is it protected speech? Or is it pornography? Who decides? Your child pornography lawyer must make sure the judge, and the jury, understand.
Statute attempts to shift burden
An element of the crime is the age of the model. The prosecutor has the burden of producing evidence. Their evidence must support their age claim. And the burden of persuasion is beyond all reasonable doubt.
Yet a statute would defy the constitution and flip the burden. The statute asserts: “it shall be an affirmative defense to a charge of violating this section that the pornographic work was produced using only persons who were 18 years or older.” Minnesota Statutes § 617.247, subd. 8.
Though not yet repealed by the legislature, the Minnesota Supreme Court held this burden shifting statute unconstitutional:
“Because the affirmative defense in subdivision 8 creates a de facto shift in the burden of persuasion to the defendant on the essential element of age, we hold that it is unconstitutional.”
State v. Cannady, 727 NW2d 403 (Minn. Supreme Court 2007)
But prosecutors frequently attempt to shift the burden of proof to the defendant. And we must alert and guard against that.
Problems of proof of age
In real life, can you distinguish someone age 18 or older from someone younger? No? And photography can make it even more difficult. If an image is “pornographic,” how can the age of the model depicted be determined? This can be a problem of proof as well as bring up legal issues about “criminal intent” and “criminal act.”
As a result, law enforcement and others in the criminal justice system, in practice, distinguish between images of pre-adolescent children and post-adolescents. After all, it may be impossible to reliably distinguish between an image of a 16-year-old versus a 20-year-old.
So most child porn cases we’ve seen prosecuted, involve images of pre-adolescent children. And every child pornography lawyer must be familiar with these issues.
“Hash Values” of images: The law enforcement community developed a database of “Hash Values of images” they identify as child porn, with identified victims and ages, depicted. But the defense can retain an expert witness to help investigate the facts, the technology, and testify.
Is it “Pornography?”
Nudity is not pornography. The natural state of the human body is naked. What God and Nature makes is not in itself obscene.
Despite the perversity of one twin cities prosecutor; naked pictures of your babies laughing in the bathtub is not pornography. Naked pictures of children are not child porn, if they are not pornographic or sexual in nature. And your art class drawings of human nudes are not pornography.
The First Amendment protects the content of art works and performances from criminal prosecution. A large body of constitutional law maps out protections for art.
Search & Seizure: Child Pornography Lawyer
How did the government obtain the evidence?
Did police obtain evidence illegally, through an illegal search or questioning?
If so, a judge may be suppress that evidence from trial upon a defense suppression motion.
Registration
A person convicted of a Minnesota Child Pornography crime “or another offense arising out of the same set of circumstances” must Register as a Predatory Offender. And under Minnesota Statutes §243.166, they must for at least ten years. But failure to comply with all of the registration requirements for the full required period is a felony with prison time.
Treatment
If convicted, the sentence will likely include either prison or probation with sex offender treatment programming. And while treatment is a preferred disposition for most convicted of these crimes, it is difficult.
FAQ: “Should I begin treatment with a pending case?” The answer to that question is usually, “no.” But you should consult an expert defense attorney like Thomas Gallagher about your specific situation.
No safe harbor for self-reports, treatment: Why? Minnesota law has no legal protections for people voluntarily seeking help for human sexuality issues that involves crimes and children. The laws close that door. So, there is no safe harbor law for those who would reform themselves under Minnesota law currently. And the law severely punishes those who self-report and seek voluntary treatment. Minnesota law punishes people who seek help with human sexuality issues, including juveniles.
Juveniles charges: child porn
A new form of prosecutor abuse is charging juveniles with child porn or “revenge porn” crimes. And often the facts involve sharing sexy selfies attached to text messages, or “sexting.” Sometimes the crimes charged include an age-based sex crime, as well.
The crime of nonconsensual dissemination of private sexual images, requires intentionally showing another’s images to third-parties. But prosecutors abuse the law by charging underage people with child porn for images of themselves. And for juveniles facing child porn charges, you’ll want a child pornography lawyer with deep experience defending juveniles, like Thomas Gallagher.
Question? Call Attorney Thomas Gallagher, 612 333-1500
Best-rated, Minnesota Child Pornography Lawyer Thomas Gallagher knows how law enforcement officers work to investigate and gather evidence in these cases. And he knows how prosecutors view these cases and what their problems are. Thomas Gallagher knows how to defend you.
So, Attorney Thomas Gallagher has helped clients avoid conviction, and helped others avoid prison. And he has experience with expert witnesses and with sex offender treatment programs in Minnesota. Choosing Thomas Gallagher as your child pornography lawyer could be the most important decision you ever make. Help from a criminal defense attorney with experience, makes a critical difference. Get Expert help.
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