RI Child Pornography Defense Attorney – John E. MacDonald

Possession of Child Pornography

Child Pornography DefensePossession of child pornography is a 5-year felony under Rhode Island state law. In the last few years, this offense has been vigorously pursued by the Rhode Island State Police computer crime unit. A typical case starts as an investigation into one of the file sharing sites where child pornography can be found and/or traded. Once an IP address is identified as involved in the possession, request or trading of child pornography, police will ascertain the IP user’s information and obtain a search warrant for the user’s computer and electronic data. Rhode Island State Police typically execute the search warrant during the early morning hours when the target of the search warrant is at their most vulnerable. Police want to not only seize the materials containing child pornography, they also want to secure a confession from the target as to their knowing and exclusive possession of child pornography. It is rare to find a target of a search warrant who does not immediately admit to knowing possession of child pornography.

Under both state and federal law, possession of child pornography triggers the requirement to register as a sex offender.

Defenses: There are multiple defenses to possession of child pornography. First and foremost, the search itself, whether based on consent or a search warrant, may be subject to a motion to suppress pursuant to a Fourth Amendment violation. Any admissions to knowing possession may be subject to a motion to suppress pursuant to Fifth or Sixth Amendment violations. Second, the materials seized may not constitute child pornography under state or federal law. Third, was the target of the search warrant in knowing possession of the materials – ie, are there multiple users of the hardware, was the hardware purchased used, did the file sharing system put child pornography on the computer’s hard drive without the user’s knowledge. Fourth, the affirmative defense of destroying the materials upon unknowingly receiving less than three images of child pornography.

If you are questioned or charged concerning possession of child pornography, it is imperative that you meet with an attorney with the knowledge and experience in this type of case.  Call our office to schedule a free consultation today:  401-421-1440.

§ 11-9-1.3. Child pornography prohibited

(a) Violations. It is a violation of this section for any person to:

(1) Knowingly produce any child pornography;

(2) Knowingly mail, transport, deliver or transfer by any means, including by computer, any child pornography;

(3) Knowingly reproduce any child pornography by any means, including the computer; or

(4) Knowingly possess any book, magazine, periodical, film, videotape, computer disk, computer file or any other material that contains an image of child pornography.

(b) Penalties.

(1) Whoever violates or attempts or conspires to violate subdivisions (a)(1), (a)(2) or (a)(3) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned for not more than fifteen (15) years, or both.

(2) Whoever violates or attempts or conspires to violate subdivision (a)(4) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned not more than five (5) years, or both.

(c) Definitions. For purposes of this section:

(1) “Child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where:

(i) The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(ii) Such visual depiction is a digital image, computer image, or computer-generated image of a minor engaging in sexually explicit conduct; or

(iii) Such visual depiction has been created, adapted, or modified to display an identifiable minor engaging in sexually explicit conduct.

(2) “Computer” has the meaning given to that term in section 11-52-1;

(3) “Minor” means any person not having reached eighteen (18) years of age;

(4) “Identifiable minor.”

(i) Means a person:

(A)(I) Who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) Whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii) Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) Shall not be construed to require proof of the actual identity of the identifiable minor.

(5) “Producing” means producing, directing, manufacturing, issuing, publishing or advertising;

(6) “Sexually explicit conduct” means actual:

(i) Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, or lascivious sexual intercourse where the genitals, or pubic area of any person is exhibited;

(ii) Bestiality;

(iii) Masturbation;

(iv) Sadistic or masochistic abuse; or

(v) Graphic or lascivious exhibition of the genitals or pubic area of any person;

(7) “Visual depiction” includes undeveloped film and videotape and data stored on a computer disk or by electronic means, which is capable of conversion into a visual image;

(8) “Graphic,” when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.

(d) Affirmative defenses.

(1) It shall be an affirmative defense to a charge of violating subdivision (a)(1), (a)(2), or (a)(3) of this section that:

(i) The alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and

(ii) Each such person was an adult at the time the material was produced; and

(iii) The defendant did not advertise, promote, present, describe or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.

(2) It shall be an affirmative defense to a charge of violating subdivision (a)(4) of this section that the defendant:

(i) Possessed less than three (3) images of child pornography; and

(ii) Promptly and in good faith and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy of it:

(A) Took reasonable steps to destroy each such image; or

(B) Reported the matter to a law enforcement agency and afforded that agency access to each such image.

(e) Severability. If any provision or provisions of this section, or the application of this section to any person or circumstance is held invalid by a court of competent authority, that invalidity does not affect other provisions or applications of this section which can be given effect without that invalid provision or provisions or application of the provision or provisions, and to this end the provisions of this section are declared to be separable and severable.

Child Pornography & the Internet

The aggressive progression of the Internet has made access to and distribution of child pornography much easier than in times past. The laws at both federal and state levels address these issues directly and aggressively in an attempt to reduce the volume of child pornography activity. The possession, distribution and receipt of child pornography all fall under violations of the US Federal Law. These images do not fall under the protection of First Amendment rights. Under Federal Law images or any visual depiction of child pornography is considered illegal contraband.

Illegal visual depictions include:

  • photographs
  • videos
  • digital images
  • undeveloped film, videotape or electronic data capable of being converted into child pornography

 

Rhode Island Child Pornography Penalties

Child pornography is strictly prohibited in the state of Rhode Island. Any person who knowingly produces, reproduces, distributes or possess an image of child pornography is subject to the penalties assigned by the state for this crime.These penalties can include fines, terms of imprisonment or both.

(1) Whoever violates or attempts or conspires to violate subdivisions (a)(1), (a)(2) or (a)(3) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned for not more than fifteen (15) years, or both.

(2) Whoever violates or attempts or conspires to violate subdivision (a)(4) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned not more than five (5) years, or both.

 

Federal Penalties for Possession of Child Pornography

There are severe penalties for possession of child pornography convictions. The gravity of these charges and sole implication of child pornography activity will have a devastating effect on the life of the alleged violator. Under federal law first-time offenders guilty of producing child pornography receive fines and 15-30 years in prison. There are also circumstances when convicted offenders carry much harsher penalties due to a prior conviction or intensified circumstances where violence or abuse has occurred.

(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter… or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter… or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life.

 

What is Solicitation of a Minor?

Solicitation of a minor is defined as, any form of a defendant inquiring or engaging in conversation with a minor, which includes the defendant asking (or soliciting) to meet the minor with the intention of any type of sexual engagement. There are several avenues in which this offense may take place. Whether the solicitation occurs face to face, over the phone, online or over any means of electronic communication, the exchange falls under the violation of solicitation of a minor. In recent years, the laws setting the parameters for this offense have expanded to remain relevant with each new medium of technology. These statutes have been restructured to cover any form of electronic communication involving a request to meet a minor for sexual engagement.

Common Defense for Solicitation of a Minor

A commonly used defense for defendants charged with this offense is the denial of awareness of age. In this approach, the defendant claims they were unaware that the person they were communicating with was a minor. This defense can hold stronger in some states than others. Many states have employed laws detailing that the defendant does not have to know the age of the child and prosecutors are only required to prove that the child was indeed a minor.

Romeo & Juliet Defense

In many cases states have made adjustments to their laws regarding the solicitation of minors; in an effort to provide relief for defendants who have been involved in relationships with a child no more than three years below their age. This defense occurs most in high school settings where minors are involved in relationships with schoolmates a few grades ahead. The elder student graduates or becomes of age while the younger student is still completing high school. Some states including, Texas, Oregon, and Florida, have employed this allowance to reduce or eliminate penalties when the circumstance involves a minor age difference.

“Romeo and Juliet” exception
In Rhode Island, there is a Romeo and Juliet exemption for consensual sex between two minors who are 14, 15, 16, or 17. But a minor younger than 14 may not consent to having sex, even with someone close to that minor’s age.

 

If you are being investigated, charged or arrested for child pornography in Rhode Island, Massachusetts or Connecticut, please contact Criminal Defense Attorney John E. MacDonald at (401) 421-1440 now for a free consultation.

If you have been incarcerated we can come to you. CALL TODAY!!