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Child Pornography And The Internet

by Maury D. Beaulier

In our internet age, more and more often, charges of child pornography are filed stemming from internet downloads form websites and newsgroups. Many of these downloads are unintentional and come in bulk transfers. This often occurs with file share programs like Limewire, MP3 Rocket and other programs of that nature that are freely available for download. A person seeking to download only music files may find themselves with images or videos that they did not anticipate. For example, a search for the rock group "Sex Pistols" generally will recover results that include files of sex related photographs.

With the shareware programs, those files cannot be viewed until downloaded. Once they are downloaded, they may be indellibly etched into your computer's hard drive. That is true even if they are erased. Such downloads, however, do not necessarily support an "intent" to possess child pornography. The same can be said of bulk downloads form newsgroups such as those hosted by Google, MSN and Yahoo. Downloading bulk attachments or zipped files may yield the same result.

At trial, the prosecution will use as evidence temporary internet files which are unintentional saved on computers with names that the prosecution will argue depict underage people in sexual acts. Sites with titles such as "barely legal" or "lolita" will undoubtedly be used as evidence even though those sites may depict completely legal images. As a result, a person accused of such crimes will require a lawyer well versed in the intricacies of the internet and how such temporary files may be unintentionally transferred to computer records.

Under Minnesota Statutes, it is a felony to possess any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct if all of the following apply:

The person knows that he or she possesses the material;

The person knows the character and content of the sexually explicit conduct in the material.

The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.

In the internet context, often the strongest defense is that the person accused did not have the requisite "intent." In other words, the person possessing the material did not know that he/she possessed it, did not know the character of the material possessed or did not know that the pornographic material involved minors. This is often the case where multiple images downloaded from web sites come bundled together or where information is automatically downloaded to a computer with computer software from newsgroups or other unscreened public areas.

A person convicted of child pornography or other "serious child sex offenses" may not subsequently engage in any occupation or participate in any volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age.

Do Not Make Statements

Obviously, the best defense begins before a defendant is ever charged. Often, in a misguided attempt to help law enforcement, defendants make statements that are twisted and turned into prosecutorial evidence. It is important to remember not to allow yourself be interviewed government agencies without an attorney present.

Any interview will be sent to the police and the county attorney's office and can be used against you. An obvious corollary is do not let yourself be interviewed again by the police without your attorney present.

Computerized Evidence.

Internet child pornography is a growing offense across the nation. Often files can be downloaded to a computer without the user knowing the content of the download. In such cases the electronic file will often include tell tale electronic evidence about the file, where it came from and its date of download. Using this evidence or challenging law enforcement's sloppy investigation and acquisition of potentially exculpatory information is the best way for a defense lawyer to prove actual innocence.

Examine Prosecution Expert's Background. An important part of every case is the ability to counter the reports and testimony of computer professionals, caseworkers and "experts" who examine pornographic evidence. To effectively counter a prosecution expert, the defense attorney must be well educated on the expert's education, work history, published works and testimony in prior cases.

Use a Polygraph. When it is advantageous to the defense against a sexual assault, defense attorneys should obtain a credible polygraph examination from a respected professionals.

About The Author

Maury D. Beaulier is a criminal defense lawyer practicing in Wisconsin, Minnesota and all Federal Courts. He can be contacted on his web site at http://www.criminal-law.tv

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