Defending Against Child Pornography Charges

In recent years child pornography offenses have gotten more attention from police and prosecutors in Washington state. Both state and federal officials have cracked down. 

A child pornography charge can destroy a person’s life and livelihood. The shame of facing such a charge is so great that many persons accused of possessing child pornography have committed suicide.

At the Marshall Defense Firm, we have a lot of experience defending against child pornography charges. We always remember what the prosecution must show to win a conviction. It must show that the person accused was the person using the computer in question at the key times. It must also show that child pornography was viewed or acquired intentionally—not by accident. We work with leading computer forensics experts to develop these and other technically-sophisticated defenses for our clients. 

Washington’s Laws on Child Pornography

Acts of knowingly possessing or viewing digital, printed, or video materials that depict a minor (a person under the age of 18) engaging in “sexually explicit conduct” are felonies under Washington law. Conviction requires registering as a sex offender, amongst many other consequences (depending on the conviction). Both possession and viewing child pornography are divided into first and second degree offenses, depending on the severity of the conduct involved. 

Under Washington law, an individual commits first-degree possession or viewing when the sexually explicit conduct or images involve:

• Sexual intercourse (whether between persons of the same or opposite sex, or with animals). It includes genital-genital, oral-genital, genital-anal, oral-anal sex
• Penetration of the vagina or rectum by any object or body part
• Masturbation 
• Sadomasochistic abuse
• Defecation or urination for sexual stimulation of the viewer

Both of these first-degree crimes are Class B felonies in Washington, meaning that convictions on multiple counts can result in sentences of up to 10 years in prison and 3 years in community custody (akin to probation). An individual with no prior criminal offenses and only one count faces a standard sentencing range of 12-14 months in state prison, followed by 3 years of community custody. 

An individual commits second-degree possession or viewing when the sexually explicit conduct or images involve:

• Depiction of the genitals or naked pubic or rectal areas or naked breasts of any minor, for the purpose of sexual stimulation of the viewer. It is not necessary that the minor know that he or she was being photographed. 
• Touching of a person’s clothed genitals, pubic area, buttocks, or breasts for sexual stimulation of the viewer.

Both second-degree possession and viewing crimes are Class B felonies in Washington, meaning that convictions on multiple counts can result in sentences of up to 5 years in prison and one year in community custody. If an individual with no prior criminal history is convicted of only one count, they face 3-9 months in county jail, followed by one year of community custody.

Federal Child Pornography Charges

Federal prosecutors charge child pornography cases, too, especially when the Postal Service is used to deliver the materials. Federal law prohibits possession, receipt, distribution, copying, or advertising of images containing sexual portrayals of minors. 

Federal sentencing law is considerably harsher on child pornography offenses than is Washington law. Even mere possession carries a five-year mandatory minimum sentence. 

Federal and state child pornography charges may be brought simultaneously against the same person, based on the same facts. That is quite rare. More common is for state prosecutors in Washington to threaten to send a case to federal prosecutors if the defendant won’t plead guilty in state court. 

The Dangers of Sexting By, and With, Teens

In Washington State, the age of consent to sexual intercourse is sixteen years. It is generally legal for an adult to have sex with a 16-year-old. But if the 16-year-old allows the adult to take a nude photo, the adult commits the crime of production of child pornography—even if the photo is never shown to anyone. Even if the 16-year-old takes a nude picture of themselves (without any encouragement by the adult) the adult commits the crime of possession of child pornography when that picture is received.

Previously under Washington law, it wasn’t just the adult who could get in big trouble in this situation. The 16-year-old who took a sexual selfie could have also been charged with production of child pornography. In 2019, lawmakers in Washington recognized the absurdity of punishing consensual sexting between teenagers in the same manner as an adult who downloads sexually explicit images of a six-year-old child and took steps to address this. Because of the Responsible Teen Communications Act, there is no longer a risk of child pornography charges if the situation involves two minors sharing depictions of themselves or viewing or possessing these types of images (so long as the minor depicted is at least 13 years old).

Anyone over the age of 18 could still be charged with possession or viewing child pornography under Washington law, but a 15-year-old and 17-year-old under the same circumstances would not be offending.

The Act amended existing child pornography laws in a number of positive ways:

• A minor (anyone under the age of 18) cannot be charged with possessing, viewing, or bringing or sending into the state child pornography unless the minor depicted engaging in sexually explicit conduct is 12 years old or younger.
• If a minor distributes, publishes, transfers, disseminates, or exchanges a depiction of another minor who is 13 years of age or older it is now a misdemeanor rather than a felony. (Note that it is still a felony if the depiction is of another minor who is 12 years old or younger.)
• It is a felony if a minor is financing or selling depictions of another minor. However, if a minor is selling sexually explicit images of himself or herself, it is a misdemeanor.
• Prosecutors are required to divert a minor’s first offense for (1) selling depictions of himself or herself engaged in sexually explicit conduct and (2) distributing sexually explicit images of another minor who is 13 years of age or older.

Investigations in the Digital Age

Most of today’s investigations for child pornography crimes don’t depend on photographic prints or video tapes. They depend on digital evidence, especially pictures or videos downloaded or viewed over the Internet. 

Arrests for child pornography often take place when law enforcement arrives at a person’s home or business with a search warrant to seize their computers, external hard drives, cameras, phones, and other electronic devices. If you ever find yourself in a situation like this, it is imperative that you contact an attorney immediately before you answer any questions—any questions at all other than to confirm your identity. Do not disclose any passwords; talk first with an attorney. It is easy to make serious mistakes when the arrested person attempts to handle any of these matters on their own.

Building a Strong Defense

Child pornography can end up on your computer through no fault of your own. Last year, we spoke about a number of ways this can happen with Randall Karstetter, Chief Data Forensics Expert at Data Forensics Lab in Auburn, Washington. It is important to remember the prosecution must show that the person accused was the person using the computer in question at the key times. It must also show that child pornography was viewed or acquired intentionally—not by accident. We’ve seen cases where people unknowingly ended up in possession of child pornography by using shareware websites like Limewire to download large batches of legal pornography. Other examples include images from pop-up ads, which can remain in the temporary files on your web browser without your knowledge. Sometimes malware, or hackers, can take control of your computer and leave behind or transfer offending material without your knowledge. 

We have even heard of cases where a vengeful spouse downloaded child pornography during a contentious divorce to gain leverage over their partner. 

If you are under investigation or have been charged with a crime involving child pornography–or any sexual misconduct–the Marshall Defense Firm can build the best possible defense. We work with leading computer forensics experts to develop technically-sophisticated defenses for our clients when that kind of defense looks strongest. 

One of our experienced, skilled defense attorneys would be happy to discuss your case with you. Please contact us at 206.826.1400 or solutions@marshalldefense.com to schedule a consultation.