Our Houston-area law firm is experienced in protecting the legal rights of persons charged–perhaps unjustly–with a child porn possession or distribution crime. Below are six possible defense strategies commonly used for this type of charge in Texas.

What defenses are possible for a child porn offense?

How our sex crime defense attorney can help you and defend your legal rights against child porn charges depends on the individual circumstances of your case. A strong criminal defense is vital to counter such serious charges effectively.

How serious is a child pornography charge? 

Very serious. So much so that child porn sentences can be unreasonable, fueled by public outrage and by lawmakers playing into that. In fact, the average federal sentence for a child porn offense is higher than for any other crime except murder.

In addition, child porn arrests are exploding. Motivated by incentives to receive financial grants, police often cast wide nets in sting operations that can snare innocent, unwary and unsuspecting Americans from all walks of life. 

Such persons then can face an unjust charge of possession of child pornography, as well as the public shaming and condemnation that can accompany such a charge, even if later it is proven unjust.

That’s why you must engage an experienced and skilled legal team to help you avoid facing years in prison, paying high fines and having to register as a sex offender.

Our child porn defense lawyers can apply a comprehensive defense strategy designed to achieve the best possible outcome for your case. Such defenses can include:

1. The “unintentional possession” defense

One possible defense strategy when facing child porn charges is that of unintentional possession, which is also known as “unintended possession.” That means you didn’t intend to have child porn in your possession, and the prohibited material did not belong to you. In fact, you may not have even been aware of its existence.

An unintentional possession child porn defense may come into play when child porn is discovered on a computer or a laptop that is shared, or to which others besides you may have had access without your knowledge. This may be the case, for example, when a computer is used for work, and another person downloads illegal content for themselves, but you are accused of doing it.

It is also possible that you used an unsecured network or shared network which enabled someone else to download child porn without your knowledge.

Such an act could even be vengeful. An angry spouse, ex-spouse, lover, ex-lover, co-worker or employee may be motivated to download child porn onto your computer in order to frame you for the crime. Such a person then could alert police about the material’s existence on your computer, with the result that you are falsely accused of possessing illegal, explicit materials of minors.

Another pertinent issue in your defense is whether a computer was pre-used or pre-owned when you purchased or received it. If so, that may enable your defense attorney to establish a defense of unintentional possession of child porn.

This would involve getting help from a computer forensics expert. Such a person can determine when the content was downloaded and perhaps establish that it wasn’t possible for you to have downloaded it, given the date when you received the computer for your own use.

The important thing is to establish that you did not possess child porn to your knowledge.

If you’ve been arrested for having child porn, don’t wait for a formal charge to engage a defense lawyer. Rather, Davis says, you need legal representation at any post-search interview with police, at which time he tends to advise a client not to speak while he explains that the client had no knowledge of the content.

Also, keep in mind that a claim that you viewed child porn is not enough to convict you. Rather, the evidence must show that you took affirmative action to save or possess child porn images. 

If your defense lawyer shows that cannot be proven, you have a legal defense.

2. The “accidental possession” defense

Increasingly, the world of the Internet can be treacherous, and your computer could have been subjected to a virus, spam, malware or other illicit input without your knowledge or consent. A hacker may even be able to cause child porn or other illegal images to be downloaded to your computer without your awareness or consent.

Many people have a multitude of files on their computer which they did not know they possessed. Accidental possession can be a valid child pornography possession defense.

3. The “illegal search and seizure” defense

Another possible child porn defense strategy involves claiming that you were subjected to an illegal search and seizure of your possessions.

Police often make procedural errors that violate a person’s Fourth Amendment constitutional rights. These rights include a right to privacy and a right to be protected against illegal searches and seizures by law enforcement authorities.

If police illegally seized evidence, your defense lawyer can argue that it is inadmissible in court—meaning it cannot be used against you. 

You could even be guilty of the crime but not be convicted based on an illegal search or seizure.

Police have been known to lie in order to get a warrant to seize a computer or other possible receptacle of child porn. Police also may search beyond the scope of their search warrant by looking into computers or locked containers that were not named specifically in the warrant. A knowledgeable defense attorney can contest such actions.

4. The “entrapment” defense

Another child porn defense involves claiming entrapment by police. That occurs when police induce you to commit a child porn offense which you would not have done otherwise. Your defense, then, is that you would not have committed the offense if the police hadn’t contacted you and persuaded you to do so.

Police also may induce persons to purchase content which wasn’t clearly child porn and not labeled as such, then arrest such persons for buying content which they did not know was child porn. Such entrapment often happens when police run a child porn sting operation to round up many suspects — not all of whom are guilty — in a widely cast net.

5. The “not child porn” defense

Child porn has specific definitions under Texas law and under federal law, and for material to be deemed child porn in a legal case, it must meet those definitions. Usually, that means the content must depict naked children or sexually explicit situations involving children.

If the individuals in the content are determined to be non-minors — that is, 18 years old or older — then the content cannot be deemed child porn. For the content to be considered child pornography, the prosecution must be able to prove that the subject of the material was under 18.

In addition, if such content serves a religious, educational or scientific purpose it should not be considered child porn. One man even faced a child porn investigation when he sent a physician a photo of his ailing child in order to enhance a diagnosis and help the child get well.

Another technicality can involve ages and marital status. Some defendants can claim that the material deemed “child porn” features a minor who was their spouse at the time of the alleged offense. But it’s important that the adult not be more than two years older than the minor whom they married.

6. The “psychological addiction” defense

Claiming a psychological addiction to viewing explicit videos of minors is not a winning defense, but it can be a means of minimizing a sentence upon conviction. 

For example, a sentence could involve attending a treatment program rather than going to prison.

Charged with possession of pornography? Contact our defense attorney today.

Child porn arrests are common in Texas, and child porn charges can strike people from all walks of life. With the severe punishments these convictions can bring, your freedom and your future may be at stake. 

Contact us at the Neal Davis Law Firm today and let us help. We can provide you with a legal review of your case, and if you choose to engage our experienced defense lawyers, we will form a defense strategy to protect your legal rights against your criminal charge.