Child Pornography

By Child Pornography Lawyer Thomas C. Gallagher

When you have been a target of a police sting or search warrant, damage has been done.  Guilty of something or wrongly accused, a person may feel overwhelmed and hopeless.  A good Child Pornography Lawyer like Thomas C. Gallagher can step in, help 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.  Gallagher can help before charges are filed or after.  Let’s take a look at the law and defenses.

Possession vs. Dissemination

Child pornography is criminal to possess in Minnesota, under state and federal laws.  Most child porn today is in electronic form.  It’s now stored on computers, smart phones, electronic storage devices and in the internet cloud.  Search warrants and searches target all of these.

Dissemination” is also a crime.

computer crime lab
computer crime lab – hard drive evidence

Prosecutors typically charge both possession and dissemination since most people in recent years get these kinds of images using internet file sharing programs.

The dissemination law was intended 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.

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.

Proportionality – the punishment should fit the crime

Perhaps the most glaring injustice of child porn prosecutions is their violation of the proportionality principle that the punishment should fit the crime at sentencing.  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.  Yet, the sentence in a 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 that results in a large number of images.

Combine that reality with legally permissible multiple convictions for multiple images 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 seized by police at simultaneously, to artificially inflate the criminal history score of a first-time offender is but 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 a 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

The problem with censorship is
The problem with censorship is

Though the statutes’ language is specific for good reason, some generalizations can be made about the nature of the images prohibited.

The images both must be pornographic and must involve a minor.

These content-based censorship laws directly punish thought, not action.  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?

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 to support the age claim, and the burden of persuasion beyond all reasonable doubt.  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.  It may be impossible to reliably distinguish between an image of a 16-year-old versus a 20-year-old.  Most child porn cases we’ve seen prosecuted involve images of pre-adolescent children.

Hash Values of images

The law enforcement community has also developed a database of Hash Values of images they’ve identified as child porn, with identified victims and ages, depicted.

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 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 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 is 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 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.

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.  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.”  An experienced defense attorney like Gallagher should be consulted about specific situations, however.

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.  There is no safe harbor for those who would reform themselves under Minnesota law currently.  The law severely punishes those who self-report and seek voluntary treatment.

Why Gallagher Criminal Defense?

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

Best-rated, Minneapolis Child Pornography Lawyer Thomas C. Gallagher knows how law enforcement officers work to investigate and gather evidence in these cases.  He knows how prosecutors view these cases and what their problems are.  Gallagher knows how to defend you.

Gallagher has helped clients completely avoid conviction, and helped others avoid prison.  He has experience with expert witnesses and with sex offender treatment programs in Minnesota.  Choosing 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