Defenses to Possession of Child Pornography (PC 311)?

We have all read about it in the paper.  Peter Frampton was arrested for possession of child pornography.  NBA basketball play Chris “The Birdman” Andersen, formerly of the Denver Nuggets, was investigated for this, too.  Often there will be a federal law enforcement effort that nets dozens of individuals, some who may be respected members of the community.

Make no mistake about it.  Possession of child pornography (Penal Code § 311) is considered a serious crime.  However, it is subject to many defenses, regardless of whether defendant faces federal charges or state charges.  The most common defenses are.

1) The Material Does Not Belong to Me. This defense typically applies when pornography is found on one’s work computer, but it was downloaded by someone else.  With a competent computer forensic expert, defendant usually can show that he or she did not download the material.

The same material may appear on one’s personal computer courtesy of an angry spouse during a nasty divorce or child custody battle.  The spouse may “plant” such material on one’s personal computer and then make an anonymous phone call to the police.

2) The Content is Not Child Pornography. Certain images of children, that one may even distribute to others, has a legitimate educational or scientific purpose.  This often includes drawings or films that the Motion Picture Association of America has rated as exempt from child pornography laws. Penal Code § 311.11.

3) The Material was Illegally Seized by Police.  If the warrant to obtain the material was illegally obtained, for example by providing false information to secure a warrant, the ends do not justify the means.  Defendant can and should file a Motion to Suppress such evidence as a Fourth Amendment violation under Penal Code § 1538.5.  Similarly, sometimes a warrant is proper, however, police search beyond the scope of the warrant, finding the material at issue beyond the scope of the warrant.

4) Lack of Intent.  This can happen in today’s world by inadvertently typing a website address by mistake.  A legitimate website may be one letter different from a pornographic website and defendant’s typing error could lead him or her to a pornographic website.  With a good computer forensic expert, defendant will likely be able to show he or she did not spend too much time on the illegal website.  This information can support a defense that defendant did not knowingly and intentionally view activity involving child pornography.

5) The Age of the “Actors” is 18 or Over, or Defendant Did Not Know the People Depicted were Under 18.  The reasonableness of defendant’s belief should be supported by expert testimony as to why the “actors” appear 18 or older.

6) Entrapment.  Entrapment is when police persuade you or entice you to commit a crime that you otherwise lacked the intent to commit.  This could be, in the case of child pornography, that police sell “adults only” videotapes online titled “Illegal Fantasies”, etc. that are ambiguous as to the subject matter and specifically the age of the “actors.”  It also could be more overt, wherein police include an illegal videotape in a sale of multiple videotapes that are legal.

7) Psychological Addiction.  While this defense is not an affirmative defense (i.e. results in dismissal), it can mitigate punishment, with the support of a credible psychological expert’s report. 

For more information about child pornography, click on the following articles:
  1. Co-Owner of Computer Can Validly Consent to Search of Computer Revealing Child Pornography
  2. Appellate Court Denies Equal Protection Challenge of Lifetime Sex Offender Registration Requirement for Possession of Child Pornography
  3. Enhanced Sentence Upheld on Appeal for Sex Crime Defendant Who Already Was a Penal Code § 290 Registrant
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