Child Pornography

computer crime lab
Hard drive evidence

Child pornography is criminal to possess in Minnesota, under both state and federal laws.  Today, most child porn is in electronic form, stored on computers, smart phones, storage devices and in the internet cloud.  “Dissemination” is also a crime.  Prosecutors commonly charge both possession and dissemination since most people in recent years have obtained these kinds of images using internet file sharing programs.  This seems a misuse of the dissemination law’s intended use to target those profiting from its sale, or at minimum engaged in dissemination as more than a technicality.

In Minnesota, most child porn cases are charged under Minnesota Statutes Section 617.247, titled “POSSESSION OF PORNOGRAPHIC WORK INVOLVING MINORS.”  Both possession and dissemination crimes charged under this statute are felonies.

Perhaps the most glaring injustice of child porn prosecutions is their violation of the proportionality principle that the punishment should fit the crime.  Child Pornography is a non-touch sex crime.  Most believe that among the types of sex crimes — penetration, sexual contact, and non-touch — the other two types are more egregious.  And yet, the sentence in the typical first-time child porn case can be far in excess of that for 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 image, sometimes hundreds, sometimes thousands.   People who are guilty of this crime appear to have some kind of collector compulsion of obsession that results in a large number of illegal images.  When that reality is combined with legally permissible multiple convictions for each image and consecutive sentencing, we end up with absurdly long, cruel and unusual punishments of hundreds of years prison time.  The practice of “Hernandizing” convictions for multiple images seized by police at simultaneously, to artificially inflate the criminal history score of a first-time offender is one aspect of this horrific problem.

Possession
The criminal law of possession applies here, as it does in other areas of criminal law where possession of some thing is made 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.

Nature of the Images
Though the statutes’ language is specific for good reason, some generalizations can be made about the nature of the images prohibited.  They both must be pornographic and must involve a minor.  The statute attempts to shift the burden of proof: “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).  Beyond that, when an image can be characterized as “pornographic,” it can be impractical to determine the age of the model depicted.  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 officers and others in the criminal justice system distinguish between images of pre-adolescent children and post-adolescents.  It may be impossible to accurately or reliably distinguish between an image of a 16-year-old and one of a 20-year-old.  This is likely why most child porn cases we’ve seen prosecuted involve images of pre-adolescent children.  The law enforcement community has also developed a database of Hash Values of images they’ve identified as child porn, often with identified victims depicted.  The defense can retain an expert witness to help investigate the facts, the technology, and possibly testify.

Is it Pornography?
Nudity is not pornography.  The human body is naturally unclothed.  What God and Nature made is not in itself obscene.  Despite the delusional beliefs of at least one twin cities metro-area prosecutor, naked pictures of your young children 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 is not pornography.  Art works and performances are protected by the First Amendment.  There is a large body of constitutional law mapping out protections for art accused of being obscene by certain elements of our society.

Search and Seizure of Evidence
How was the evidence obtained?  If it was obtained illegally, though an illegal search or illegal questioning, that evidence may be suppressed from trial evidence by a judge 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” will be required to Register as a Predatory Offender under Minnesota Statutes Section 243.166 for at least ten years.  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.  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 a resounding, “no.”  Because Minnesota law has no legal protections for people voluntarily seeking help for human sexuality issues that involves crimes and children, that door is closed by the laws.

Help from an experienced criminal defense attorney can make all the difference in these cases.

Question?  You can call Thomas C. Gallagher, Minneapolis Sex Crimes Attorney, at (612) 333-1500.