If the police have arrested you for a child pornography offense, you are in a tough situation, even if you are innocent.
Multiple aspects of your life are in jeopardy, including your freedom, finances, and reputation. Now is the time to act decisively.
Child pornography laws vary somewhat from jurisdiction to jurisdiction. Here, we focus primarily on the legal standards under Minnesota law.
What Is Considered “Child Porn”?
In Minnesota, child pornography is a work that depicts sexual conduct by minors. “Sexual conduct” is broadly and explicitly defined.
Mere nudity or even the portrayal of contact with clothed genital areas can constitute child pornography.
Under Minnesota law, anyone under the age of 18 is a “child” (or a “minor” as used in the statute) for the purpose of enforcing child pornography laws.
Which Activities Are Illegal?
Minnesota (as well as the federal government) prohibits a wide range of activities relating to child pornography, including:
- Distribution; and
- The use of a minor in a sexual performance;
Other uses of child pornography are prohibited as well, including employing a child to produce pornography, owning or operating a business that produces or distributes child pornography, and similar offenses.
It is essential to realize that the possession, receipt, and distribution of child pornography are only illegal if your actions are intentional or negligent.
You must know or have reason to know that the material includes child pornography.
Child pornography laws sometimes produce disturbing results.
A 15-year-old girl, for example, theoretically commits a felony by sending a naked photo of herself to her 15-year-old boyfriend. He commits a felony if he opens it and fails to delete it right away.
Legal Limitations on the Prohibition of Child Pornography: The Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a federal child pornography statute that the Supreme Court struck down in 2002.
The Court struck down this statute because it criminalized:
- Possession of material containing depictions of people who “appear” to be minors posing naked or engaging in sexual acts (whether or not they were actually under 18), including computer graphics; and
- Material that is marketed, publicized, or promoted in a manner that suggests that it depicts a minor engaging in sexual conduct, even if it doesn’t.
The Supreme Court’s ruling was based on First Amendment concerns. If a state law criminalizes behavior that the First Amendment protects, it’s possible that a court will reject the law as unconstitutional.
Defenses Against Child Pornography Charges
Following are brief descriptions of some of the most popular defenses against child pornography charges.
Unintentional or Accidental Possession
You are probably not aware of every file on your personal computer. To “possess” child pornography in a legal sense, you must know that you have it. Below are some variations of this defense:
- The computer is a shared computer, and someone else downloaded the material;
- A virus or malware placed pornographic material on your computer without your knowledge;
- Someone with a grudge against you put child pornography on one of your devices to frame you for a crime;
- A hacker put child pornography on your computer to blackmail you for it; or
- Child porn was inconspicuously present within a large cache of legal pornographic material you intentionally downloaded.
Because of this defense, prosecutors often have difficulty pinning child pornography charges on anyone who does not habitually use child pornography.
Illegal Search and Seizure
Opening your computer files without your knowledge or consent constitutes a “search” for Fourth Amendment purposes.
If law enforcement searches your computer without a warrant and without qualifying for an exception to the warrant rule, you can seek to exclude the results from evidence.
You can also exclude material that police gathered outside the scope of a valid warrant. Without this evidence, a conviction might be impossible.
Entrapment occurs when the police entice you into committing a crime that you were not otherwise inclined to commit so that they can arrest you for it.
Entrapment also occurs when the police entice you into purchasing pornographic material that you had no way of knowing included child pornography, as part of a “sting” operation.
Entrapment is a complete defense. If you establish entrapment, a court will dismiss any charge arising from it.
The Material Does Not Constitute Child Porn
Minnesota and federal law provide explicit definitions of child pornography. If the material you were caught with fails to meet these definitions, it is not child pornography.
The prosecutor bears the burden of proving that the “child” involved was below the legal age for porn (under 18) when the material was created.
Minnesota and the federal government recognize many different criminal offenses relating to child pornography. All of them are felonies, and the maximum jail time for child pornography offenses is never less than several years.
Penalties for the distribution of child pornography tend to be among the most serious, sometimes involving incarceration for more than a decade and a fine in the tens of thousands of dollars.
Sex Offender Registration
Under the federal Sex Offender Registration and Notification Act (SORNA) and the Minnesota sex offender registration statute, completion of a child pornography sentence triggers the requirement to register as a sex offender after your release.
If you avoid incarceration despite a conviction, your obligation to register as a sex offender will arise immediately.
You must register as a sex offender each time you move to a new home. You will face restrictions on your movements.
The law might prohibit you from living near a school, for example. Your obligation to register as a sex offender will continue for a specified number of years. Some offenders must continue with registration for life.
There Is No Time to Waste When Your Life Is at Stake
At Arechigo & Stokka, we have provided our clients with aggressive, relentless, and successful representation for over two decades.
We serve clients throughout Minnesota and North Dakota, including Minneapolis, St. Paul, Dakota County, Scott County, Washington County, and throughout North Dakota, including Fargo, Grand Forks, and Bismarck.
Attorney John Arechigo has a passion for criminal defense in St. Paul, MN. John received his J.D., from Hamline University School of Law and also carries a Bachelor of Arts from, The University of Minnesota. John was named Attorney of the Year for 2019 by Minnesota Lawyer. Additionally, John was also named as a 2019 Rising Star and was selected to Minnesota Super Lawyers in 2021. He devotes nearly 100% of his practice to defending individuals charged with a crime.