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Possession of Pornography

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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.    

Possession of Pornography Cases

The legality of pornography is murky. The Supreme Court of the United States uses the Miller Test to determine the legality of pornography and its level of obscenity. If a local community were to agree that it is obscene, it could be banned there. Internet porn further complicates the issue.

However, federal child pornography laws in the United States are very strict, prohibiting the possession, production, and distribution of any pornographic images that have children in them. Even having digital files of child porn on your computer can lead to incarceration in a federal prison. Simply hitting the delete button is not enough to permanently remove the files from your computer, as the files often remain buried deep in your computer’s hard drive.

Each state and district have their own unique possession of pornography laws. Most agree that anyone under the age of 18 is unable to consent to sexual acts. This could mean that high school students who share naked photos of themselves with each other could be charged with the production, possession, and distribution of child pornography, if one of the participants is younger than 18. This has the potential to ruin a young person’s future.

Complexities of Pornography Charges

When you download porn from the internet, it’s very possible that you don’t know the ages of the participants in the video. Unknowingly, you can download child porn to your computer. If someone can access the file from your computer, such as from a peer to peer network, you could be charged with distributing child pornography. This can mean that innocent people who simply made a mistake could be wrongfully charged.

Sometimes child pornography charges come with related charges, such as: 

  • Statutory rape
  • Sex acts with a minor
  • Sexual battery of a minor
  • Lewd behavior

What to Look for in a Criminal Defense Attorney for Possession of Pornography Cases

The best defense against possession of pornography charges is an effective offense. You need a highly experienced criminal defense lawyer comfortable trying cases in federal court, who understands what it takes to build a defense strategy that works. The attorney should know about local, state and federal pornography laws and understand what defenses have precedence.

Talk to an attorney now by calling (832) 381-3430 or contact us today to reach an expert criminal defense attorney in The Woodlands, Texas area with experience trying possession of pornography cases. I’m happy to discuss with you the details of your case to see how I can help. I have helped other clients get the most successful outcomes for their possession of pornography cases in The Woodlands, Houston, and Conroe.

Frequently Asked Questions About Possession of Pornography

Texas is one of the toughest states on possession of pornography and other similar cases.  Texas has a staggering 88% conviction rate in criminal trials!  This is not a battle to fight alone.  So, it’s critical to understand the laws and your rights.  Below are some common questions we hear when working with defendants on pornography cases:

How is child pornography defined by the law?

Per federal law, child pornography can be in the form of photographs, videos, digital or computer-generated images indistinguishable from an actual minor, images created to depict an actual minor, undeveloped film, electronically stored data, and video tape. Any depiction of sexually explicit conduct involving a person under the age of 18 years old is illegal.

What should I do if I accidentally viewed child pornography?

With so many teens producing explicit photos of themselves using the cameras on their phones, this is more common than you might think. If you realize that you have received or downloaded sexually explicit images involving one or more minors, contact an attorney. By self-reporting, you may be exempt from charges, but it’s important to have a lawyer by your side to protect your rights throughout the process.

If the police contact me about child pornography allegations, what should I do?

Do not take this lightly.  Immediately contact an experienced criminal defense lawyer. Do not answer any questions or consent to a search, even if you are innocent. Ask for the name and contact information of the officers who have reached out to you and pass along this information to your attorney.

My son is only a year older than his girlfriend, but she’s still a minor and now he’s being investigated for possession of child pornography for having pictures of her on his phone. What do we do?

Contact our law firm for assistance. We understand the stress you’re under and your worries that your child’s life will be ruined if convicted of these charges. There are many defense strategies available for reducing charges, but it requires an attorney who has in-depth knowledge of local, state, and federal pornography laws.

Do I have to register as a sex offender if I’m convicted on child pornography charges?

Yes, you will need to register as a sex offender. In certain circumstances, you may be able to petition to be removed from the registry, but it’s best to have an experienced attorney walk you through the process and help make your case to the court.

How do I find the best defense lawyer for my case?

Not every lawyer is capable of defending those accused of possession of pornography or other related sex crimes.  First, you need a lawyer who’s experienced in these types of cases.  They will be your first line of defense and emotional support system as they fight for your rights.  Attorney Andrea M. Kolski has over 20 years experience in these cases and has won hundreds dismissals or lowered charges for her clients.  If you’re facing possession of pornography charges in Montgomery county, contact our office immediately for top-notch legal help.

Learn more about possession of pornography law and other legal topics in our blog. 

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. 

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