What are the Defenses to Child Pornography in Minnesota?

The internet has had an enormous impact upon the world.  However, one area it has created a serious downside is the distribution, intended and otherwise, of child pornography. Because of this, the ability to be surfing the Net and to follow it down a rabbit hole into potentially illegal content including child pornography is easier than ever before. Once that content hits your server, it changes everything. The results in Minnesota could be Felony Child Pornography charges. That being said, there are absolutely defenses that can apply here in Minnesota. If you receive notice from your server that you potentially had access to this material or if you are contacted by the police, contact an experienced Minnesota child pornography lawyer immediately. Don’t wait until you have been charged.

“Once law enforcement receives notice of possible access to child pornography, it is like a boulder being pushed down a mountain.  It will gain steam and cause more destruction.”

What Defenses to Child Pornography are there in Minnesota?

• It isn’t child pornography;

• It is not in my possession;

• I didn’t know it was child pornography';

• It was an illegal search;

• This wouldn’t have happened but for the Police.

The Content is not Child Pornography

In order for Minnesota to consider content “Child pornography”, it must fall within a very specific definition.  What is most common is a naked child under the age of 18 and/or sexually explicit content featuring children. However, there is some content that may fall outside the definition. Examples of work that may not be child pornography include:

• Baby pictures sometimes carried by a parent that are not sexual in nature;

• Virtual images that are not images of real children;

• Drawings or paintings made for artistic purposes;

• Images used for scientific or educational purposes.

Defendant not in Possession of Child Pornography

A common defense to child pornography is that the material does not belong to the defendant. As a result, they cannot be found guilty of possession of child pornography. “Its not mine. It belongs to somebody else.” This defense most frequently takes place where there is a shared computer or network and others may have access to the computer or hard drive in question.  This may also happen if somebody else downloads the offending material and then tries to frame somebody for it.  This could be an angry spouse, a business partner, an ex-friend or even somebody else who simply decided to download the material on your computer rather than on their own.  An experienced child pornography criminal defense attorney could bring in a forensic examiner to determine the exact time of the download to establish whether you were even present at the time of the download.   

Unintended Possession of Child Pornography

One requirement of possession of child pornography is intent. A defendant must have intended to download the material for there to be possession. An example of this might be a defendant inadvertently clicking an email or pop-up and then never looked not even knew that the material was downloaded onto their computer.  Another example would be inadvertently downloading while looking at legal adult pornography. This mistake could fall within the umbrella of unintended possession.  An experienced child pornography defense lawyer could bringing a forensic expert to investigate how it was downloaded, whether it was ever opened, etc.

Entrapment

Entrapment usually takes place when there is some sort of a sting operation where the police lure somebody into a situation to commit a crime in which which they would never have otherwise committed. This may happen if undercover officers posing as individuals who have pornography to sell or share.  The question will usually turn on the question of age and whether the person was “predisposed” to viewing the material. In the end, it may come down to what is said about the material or even how it is labeled. If this wouldn’t have happened but for the efforts of these undercover officers, entrapment is an absolute defense and charges would have to be dismissed.    

Illegal Search

When the police are investigating possession of child pornography, they frequently start with a search warrant. The defendant may be able to argue that the police made procedural errors that resulted in a violation of his constitutional rights. Essentially, the argument is that the incriminating evidence was illegally seized by the police. This can happen if the police officer lied in his affidavit to get the search warrant or if the officers went beyond the scope of the warrant itself. In other words, even if you did it, because the police didn’t do their jobs right, the evidence would be suppressed and the case dismissed outright.

“Because child pornography is such a loaded phrase here in Minnesota and around the country, knowing and understanding the possible defenses is even more critical.”

Jack Rice is a Board Certified Criminal Law Specialist, a former prosecutor and a former CIA Officer.  He is also a nationally known Child Pornography Defense Attorney. Contact Jack Rice Defense for a free confidential consultation or call 651-447-7650 or 612-227-1339.  Jack’s got your back.