Crimes » Sex Crime Defense » Child Pornography

Child Pornography

By Child Pornography Lawyer Thomas C. Gallagher
Child-Pornography-Lawyer-600

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 may feel overwhelmed and hopeless.  But a good Child Pornography Lawyer like Thomas C. Gallagher can step in, help stop the damage, and begin the rebuilding process.

And the sooner you get good legal help, sooner you’ll feel better; and the better the outcome will be.  Thomas Gallagher can help before criminal charges or after.  So let’s take a look at the law and defenses.

Possession vs. Dissemination

A child pornography lawyer sees two common charges.

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Possession

First, child pornography is criminal 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

But, Dissemination is also a crime.

And prosecutors typically charge both possession and dissemination. Because most 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 or profit from these images.  Rather, they target 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 Section 617.247, titled “POSSESSION OF PORNOGRAPHIC WORK INVOLVING MINORS.” 

computer crime lab
computer crime lab – hard drive evidence

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 – the punishment should fit the 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 have three types of sex crimes:

  • penetration,
  • sexual contact, and
  • non-touch

But most believe that the other two types are more egregious. 

Yet, the sentence in a first-time child porn case can exceed that of a person convicted of stranger-rape-by-force.

The laws in this area are ripe for 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 multiple 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 another part of the problem.

So, a good child pornography lawyer is essential.

Possession

The law of criminal possession applies here; as it does in other areas where criminal law makes possession of a thing contraband.

The prosecuting attorney needs to have evidence that the person accused had dominion and control over the prohibited thing.

Ownership is not possession.

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.

The problem with censorship is
The problem with censorship is

Nature of the Images

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 jury understands.

The statute attempts to shift the burden of proof

An element of the crime is the age of the model.  The prosecutor has the burden of producing evidence. Their evidence must support the age claim; and the burden of persuasion beyond all reasonable doubt. 

And yet a 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 Section 617.247, subd. 8 (2017).

Problems of proof of age

In real life, can you distinguish someone age 18 or older from someone younger?  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 distinguish between images of pre-adolescent children and post-adolescents.  And 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.

Nudity is not 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 delusions 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.

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. So we have some protection from accusations of obscenity by certain elements of our society.

Search and Seizure of Evidence

How did the government obtain the evidence?  If obtained illegally, through an illegal search or questioning; 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 Section 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.

A good Child Pornography Lawyer can help you understand what triggers the registration requirement; and how to avoid it by avoiding conviction.

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.

A frequently asked question is “should I begin seeking help and treatment while my case is still pending?”

The answer to that question is almost always, “no.” 

But you should consult an expert defense attorney like Thomas Gallagher about specific situations.

No safe harbor in Minnesota for self-reporting & 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 for those who would reform themselves under Minnesota law currently.  And the law severely punishes those who self-report and seek voluntary treatment.

Juveniles charged with child porn crimes

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.” 

The crime of nonconsensual dissemination of private sexual images, requires intentionally showing the images to third-parties.  But prosecutors abuse the law by charging underage people with child porn for images of themselves.   And for these cases, you’ll want a child pornography lawyer with deep experience defending juveniles, like Thomas C. Gallagher.

Why Gallagher Criminal Defense?

Best-rated, Minneapolis Child Pornography Lawyer Thomas C. 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, 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. 

Thomas Gallagher, Child Pornography Lawyer in Minneapolis
Thomas C. Gallagher, Child Pornography Lawyer

Choosing Thomas Gallagher as your child pornography lawyer could be the most important decision you ever make.

Help from an experienced criminal defense attorney makes all a critical difference.  Much is at stake.  Get Expert help early.

Question?  You can call Thomas C. Gallagher, Minneapolis Child Pornography Lawyer, at 612 333-1500