Child pornography charges are increasing in Michigan and in Federal Courts. Law enforcement officials are searching for file-sharing services daily for child pornography. A person may be on a file sharing service looking for legal items to download but if child pornography is on this file sharing service, you could get a visit from your local law enforcement officer.
The Criminal Defense Law Center of West Michigan has seen people charged with child pornography that has little or no prior criminal record. Those charged, who do have prior convictions, often have no prior sexual conduct or child pornography charges.
The most important case involving child pornography laws in the United States of America is New York v. Ferber. In Feber, the United States Supreme court held that the First Amendment of the United States does not keep the states or federal government from creating and enforcing laws banning the sale of material depicting children engaged in sexual acts.
The United States Supreme Court held that child pornography can be banned even if the material is not obscene. People who are charged in either federal or state courts need to hire an attorney who is experienced in defending child pornography charges in federal or state courts.
In Ferber, The United States Supreme Court held that the government has a compelling interest in protecting children from sexual exploitation. The Court also ruled that the distribution of child pornography is intrinsically bound with the sexual abuse of children. The court also ruled that even pictures of children engaging in sexual activity may be made illegal by state governments and by the federal government.
Over the last 15 years, the maximum penalties for child pornography have gone up 500 percent in the last 15 years! There are numerous of charges related to child pornography that are prosecuted in state and federal courts. The main decision of whether a state or federal prosecutor picks up a case depends on what type of law enforcement agency is prosecuting the law.
If the case has national attention, the federal government is more likely to pick up the case as well. If the case deals with the transportation of minors across state lines, the federal government is more likely to pick up the case. If the case deals with sending pictures across state lines, the federal government is more likely to pick up charges. Most of the time, the federal government will punish child pornography harsher than the state of Michigan does.
Child pornography charges come in two categories:
Using a computer to commit a crime is often added on these charges.
Distribution of Child Porn is a charge a person can face for simply downloading it on their own computer according to Michigan law. Distribution of Child Porn need not be forwarded to another person.
A fellow lawyer, who does some work with me at The Criminal Defense Law Center of West Michigan, has noticed that there are several cases in the West Michigan area where people are being charged for Distribution of Child Porn for simply downloading it to their computer or cell phone.
Until recently, a person charged with the distribution of child porn had to attempt, sell or give the material to another person. The prosecution has successfully argued that under the language of the statue “copies” of material can equal distribution according to MCL 750.145(c)(2).
There is a massive difference between the penalties for possession and distribution. Possession is a four-year maximum penalty while distribution carries a maximum penalty of 20 years.
To sum things up, under Michigan law as it has been interpreted by the courts, a person engages in the distribution of child porn to themselves. This is down by downloading it to your computer. Places on the internet that file share and very closely watched by law enforcement. Be very careful what you download! We have heard from several people who downloaded what they thought was legal porn only to find out that the file had child pornography on it.
This charge has a maximum penalty of 4 years in prison and a fine of up to $10,000. A person who is convicted of possession must also register as a Tier 1 sex offender.
Model Jury Instructions for Possessing Child Porn (source, the Institute of Continuing Legal Education).
1. The defendant is charged with the crime of possessing or accessing child sexually abusive material. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
2.First, that the defendant [possessed child sexually abusive material / looked for child sexually abusive material and intentionally caused it to be sent to or seen by another person] .
3. Child sexually abusive materials are pictures, movies, or illustrations of [a person under 18 years of age / the representation of a person under 18 years of age] engaged in one or more of the following sexual acts:
[Choose either (4) or (5), depending on whether the depiction is an actual person or is a created representation of a person under the age of 18:]
4. Second, that the defendant knew or should reasonably have known3that the person shown in the sexually abusive material was less than 18 years old, or failed to take reasonable precautions to determine whether the person was less than 18 years old.
5. Second, that the defendant possessed or accessed a portrayal of a person appearing to be under the age of 18, knowing that the person portrayed appeared to be under the age of 18, and all of the following conditions apply:
6. Third, that the defendant [knew that (he/she) possessed / knowingly looked for] the material.
This charge carries a penalty of up to twenty years in prison. It is a charge that is almost always added on to any child pornography case.
Rest assured, Federal law enforcement agencies want to hammer those who put child porn on-line and those who possess it. Pretty much everything you do on the Internet is recorded. Any interaction a person has with with a website or someone online can be turned over to law enforcement. In some cases, the person you are dealing with might be an undercover agent. If the U.S. Customs (Department of Homeland Security), the F.B.I. or a U.S. Postal Inspector contact you about your “internet use” you better not talk with them. You should call The Criminal Defense Law Center of West Michigan asap! The federal government will almost always try to get a confession and then a search warrant before they decide to take a case to court. If you don’t talk to the feds, there is a chance no charges will be brought against you. So do not talk to them!
Cases involving transmission of child pornography (emailing a single image to an undercover agent) will land you a mandatory minimum five-year sentence in federal prison. The maximum range is ten years to life imprisonment.
Under federal law, a person may not possess, distribute, copy, or advertising of images containing sexual depictions of minors. A federal conviction for possession of child pornography can land a person in prison sentence for five to twenty years, and up to forty years if the person has been convicted before.
The state or federal government can prosecute child pornography cases. The prosecution of federal child pornography has risen rapidly over the past ten years:
1995 2000 2005 2009 2010 2011 2012 2013
86 462 1,112 1,826 1,692 1,797 1,645 1,769
If you or anyone you know is charged with or under investigation for a federal child pornography offense, it is extremely important to call The Criminal Defense Law Center of West Michigan at 616-438-6719 and ask for Shawn! An experienced Michigan federal criminal defense attorney can protect your rights.
One of the first things The Criminal Defense Law Center of West Michigan will do is see if there is a challenge to seizures or searches done by the federal government. A search without a warrant has probably violated the Fourth Amendment of the US Constitution. Search warrants can be illegal if the officer lied and this lie was needed to obtain the warrant. This means all of the evidence can potentially repressed.
If the government can prove all of those elements, the jury will be instructed to find the person accused guilty. If the government is not able to prove all these elements, the jury will be instructed to find the accused not guilty.
Attorney Shawn Haff
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