In California, there are a multitude of criminal offenses relating to child pornography (Penal Code section 311, generally). However, among these many violations, the most commonly alleged offense is possession of child pornography (Penal Code section 311.11), which states that it is a crime to knowingly possess or control any child pornography that was made using a person under the age of 18 years of age. Child porn is defined as any matter or material (films, photos, video, etc.) depicting sexual conduct (intercourse, oral copulation, masturbation, etc.).
To prove the key element, “knowingly”, the prosecutor must establish the defendant knew the nature of the material he/she possessed and that he/she knew material showed a person under 18 years of age. Consequently, the following are defenses to the charge:
- the computer containing the material was not defendant’s or someone else had access to defendant’s computer
- the material was unintentionally or mistakenly downloaded
- the person(s) depicted in the material were 18 years of age or older
- the purpose of possessing the material was legitimate (medical, scientific, educational)
While the above constitute defenses to the charge, they may be imperfect, at best. That is, simply asserting that “I used the material for educational purposes!” or “the person in the video looked 18 years of age to me” will not be enough to convince a prosecutor to dismiss the case, or even to reduce the charge or penalties. To make an effective argument in favor of the particular defense, there should be other corroborating, credible evidence:
- the “true owner” of the computer submits a written statement that the computer containing the images was his/hers
- legal documentation or identification that the persons depicted in video were 18 years of age or older
- professional essays/articles reflecting that the material depicted was authorized, commissioned, or invited for a legitimate purpose (a medical journal or a scientific study)
Recognizing that the prosecutor has the legal burden of proving each and every element of the offense beyond a reasonable doubt, it is not the defendant’s responsibility to prove his/her innocence. However, in cases where the client wishes to expedite the “truth-finding process”, it can be especially beneficial for the attorney to share evidence with the prosecutor that exonerates his client, or perhaps, mitigates the possible penalties, early on in the proceedings.
Such decisions concerning strategy must always be discussed with the client and weighed carefully against the possibility that “beneficial” or exonerating evidence is still not persuasive to the prosecutor! In some cases, a determination may be made by the attorney-client team that it is more effective/impacting to use the “beneficial” evidence at a jury trial only.
Punishment & Sex Registration
While possession of child pornography (for first-time offenders) can be charged as a misdemeanor or felony, most prosecutors will usually file a felony, in light of the sensitive nature of the offense and young age of the persons depicted in the material. If so, the punishment can include the defendant being placed on formal probation and serving up to one year of custody in the county jail, plus fines/fees, and sex counselling (usually for one year). If felony probation is denied, the defendant may serve 16 months, 2 years, or 3 years of custody in state prison.
In the unusual case where the defendant is charged with a misdemeanor, punishment may include up to one year in custody in the county jail, and fines/fees, and sex counselling (usually for one year).
Finally, as of 2017 in California, a new three-tiered system (SB 384) exists for designating for how long a defendant is required to register as a sex offender. For misdemeanor convictions of possession of child pornography, the registration requirement with local law enforcement is 10 years (Penal Code section 290). For felony convictions, registration is a lifetime obligation. Failure to register can result in either a new misdemeanor or felony offense, punishable up to one year in county jail or 3 years in state prison.