With faster internet speeds and highly sophisticated smartphones, online video content is now readily available wherever and whenever we want. But, like any technological advancement, online video content has its pitfalls- especially in regards to online pornography.
It’s estimated that as much as 30%-40% of all data transferred across the internet is pornography. Some sources estimate the number may be higher. Regardless of whether it’s 30% or 50%, the fact is pornography is prevalent and easily available online.
However, unlike other forms of video, online pornography has strict laws surrounding its use, possession, and distribution. With 17 years as a prosecutor and criminal defense attorney, Andrea M. Kolski has been involved in many online pornography cases where individuals may have been unaware of the law. Regardless of whether they knew they were doing something illegal, most defendants are shocked about the severity of the offense, and how harshly these cases can be prosecuted.
Just because something is easy to access doesn’t mean it’s legal. And just because an image is deleted doesn’t mean it can’t be recovered.
According to Texas Penal Code § 43.26, a person "knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense".
The keyword is “intent” or “knowledge”. The State must prove intent. One way the State may prove intent or knowledge is by showing that an individual either knew they had the pornography, or attempted to view the pornography.
It is often misunderstood that Possession of Child Pornography is a strict liability offense, and involves no mental state, guilty mind, or "mens rea". In Texas, you can't be convicted of Possession of Child Pornography without a guilty state of mind.
The State also has to prove the images are child pornography and contain images of persons younger than 18 years of age. One of the ways the State proves age is if the child is a "confirmed" exploited child (meaning one where the age and identity of the child are already known). The State may also employ forensics and experts to determine age based on physical characteristics of the individual in the photo or video images.
The State will examine a person’s browser history or search terms that indicate one is deliberately and intentionally searching for images, or evidence the individual has attempted to share pornography with other individuals. Authorities will look for actual possession of child pornography on an individuals' computer hard drive, telephone, and server. It’s also common practice for authorities to seize these items and conduct a forensic data investigation for further evidence.
The State doesn’t stop at “downloaded” content residing on a device either. They can also access membership to certain online groups designed to retrieve and share child pornography images. Sometimes, these “anonymous” sites contain an astonishing amount of personal information.
Online pornography laws are serious. Anyone facing criminal charges regarding online possession of pornography should seek experienced professional help immediately. If you or a loved one has been charged with breaking the law, call the Law Offices of Andrea M. Kolski for experienced help.
This page is for general information only. Any information on this page is not to be considered legal advice or in anyway constitute a client-lawyer agreement.
My practice is conveniently located at 8505 Technology Forest Place, Suite 104 in The Woodlands, TX — 77381. You can reach me by filling out this form or by contacting us at 832-381-3430. If you're not sure about whether or not the I can serve you, please visit us here to learn more about Andrea and this firm. Please note that, since I handle every case personally, there may be a delay in response but no messages will be discarded.