Potential Defenses to Possession of Child Pornography Charges

possession of child pornographyPossession of child pornography carries serious penalties, including being required to register as a sex offender.

Most arrestees are rightly terrified of being convicted and hope that there is a way to beat the charges.

At Tidwell Law Firm, our job is to carefully review the evidence against our clients and then come up with the best available defenses. Although no two cases are the same, we might attack the case against you by arguing the following.

Here are some potential defenses to a charge of possession of child pornography.

Unintentional Possession

You might have child pornography on your computer, but that does not mean you intentionally downloaded it:

  • Someone might have sent the imagery as an attachment which you opened without knowing what it was.
  • You might have typed the wrong URL and been taken to a child porn website.
  • You might have innocently clicked on a link that instantly began downloading child pornography.

This is a difficult defense to prove, but you can point to how little time you spent on the website or the fact that you instantly deleted the image.

Someone Else Downloaded the Images

The fact that child pornography is on your computer does not mean you downloaded it.
Someone else, such as a friend or child, might have downloaded the material instead. The prosecutor needs to show that you were the one who obtained the images.

To raise this defense, it is helpful to show who else had access to your computer and the time the images were downloaded. If you were away on vacation when someone downloaded the images to your home computer, you would have a solid defense.

The Imagery is Not Child Pornography

To be charged for possession of child pornography in Texas, the imagery needs to depict sexually explicit conduct involving someone under 18.
Sexually explicit does not necessarily mean engaged in sexual activity (though that obviously qualifies). Even nude images that are sexually suggestive qualify.

As a defense, you might argue the images do not depict children, which means the images are not child porn. Also, some images are exempted, such as material that serves a scientific or educational purpose.

Your attorney will need to look at the images to assess whether you can raise this defense.

Unconstitutional Search

The police must follow the Constitution before they can search your possessions and seize images.

In particular, police need probable cause before they can search without your permission. If the police have no legitimate reason to believe you have child pornography, they can’t access your computer or home.

Of course, today, most child porn is downloaded online, and the police will use Internet Services Provider (ISP) information to identify who is downloading illegal images. Nevertheless, some clients might have success in raising this claim.

Entrapment

Most people have heard of entrapment but do not know what it means. Basically, the police cannot arrest you after encouraging or tricking you to commit a crime you otherwise would not have committed.

Entrapment is hard to prove. However, if the images you bought or downloaded were not clearly labeled as child pornography, you might be able to raise entrapment as a defense.

Contact Tidwell Law Firm

At our firm, we often receive phone calls from people who are in a panic over charges such as possession of child pornography. We can help.

Our criminal defense attorneys have handled various pornography cases, and we are available to help you, too.

For more information, please reach out to us today.

Author Photo

Jerry Tidwell

Jerry Tidwell founded the Tidwell Law Firm, PLLC in 2006. Jerry graduated cum laude with a Juris Doctor degree from the Texas Tech University School of Law. As a member of the State Bar of Texas, Jerry has over 14 years of legal experience and practices family and criminal defense law. He has earned a Superb rating by Avvo. To learn more, read Jerry’s full bio here.

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