Harsh child pornography laws can even harm those thinking they are viewing adult sexual material

Harsh child pornography (CP) laws should make everyone think twice before even seeking out adult sexual material online and elsewhere. As a Fairfax criminal lawyer, I know that a five year mandatory minimum incarceration sentence is required for a federal conviction for receiving even one image of CP (even if the minor in the image is only one day shy of their eighteenth birthday). That — plus the complete illusion of any anonymity over your Internet activity — should make you think carefully before making an effort even to view adult sexual material online. Moreover, even the adult video companies that take great pains to avoid depicting minors in their material are at risk of underage performers who falsify their birthdates, including former star Traci Lords. While the federal sentencing commission has supported eliminating the foregoing 5 year mandatory minimum for receipt (versus production or distribution) of CP, such a result has not come to fruition. Federal Sentencing of CP (2021) (at page 8). Do not be lulled into a false sense of security that no mandatory minimum sentencing applies to mere possession of CP, because one has to receive CP in order to possess it.

How real is my risk of getting caught in a harsh child pornography prosecution from seeking adult sexual videos and pictures on the Internet?

Consider the source of any sexual material you seek, in relation to the harsh child pornography laws. The less risky sources for such material are United States-based companies that invest substantial time and money to avoid even mistakenly posting and selling images with CP, and who hire lawyers to advise them on complying with federal recordkeeping requirements in that regard. However, we then have everyone else, running from for-profit enterprises to amateur operations, with different levels of concern and resources to comply with CP laws. Such providers who are outside of the United States may may not even see themselves as obligated to comply with U.S. CP laws. When you Google for any visual sexual material, you have no assurance against seeing CP upon clicking any of the results, nor that any CP will not be interspersed among the resulting thumbnails. It is a fallacy to think that you only are at risk for images and videos that you intentionally archive into a specific location on your computer or other device. If you can see an image on a website, then police can find it as well, if they obtain access to your digital devices and activity.

Am I safe from harsh child pornography prosecution and conviction by seeking adult sexual material in printed and DVD form?

Avoiding the Internet altogether reduces your risk of a harsh child pornography prosecution for seeking out adult sexual material in printed and DVD format. However, that still does not eliminate the risk that any of the performers therein are minors. At the same time, prosecutors can have a hard time proving that post-pubescent performers are minors, which might reduce the risk of as many CP prosecutions involving post-pubescent images. However, if a jury finds beyond a reasonable doubt that any of the performers were under 18 at the time of the performance, that is a bright line that a CP defendant gets stuck with. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

What are my sentencing risks for a Virginia child pornography conviction?

Virginia § 18.2-374.1:1 Code  sets forth the commonwealth’s own harsh child pornography prohibitions and penalties. This includes a five year mandatory minimum for a second offense for distributing or otherwise trafficking in CP. While the Virginia CP sentencing scheme may not be as harsh as the federal sentencing scheme, in all Virginia criminal cases judges are free to sentence up to the maximum allowed by law and to exceed (and go below) the Virginia sentencing guidelines. 

How do I avoid my CP case from being prosecuted in federal court versus Virginia state court?

As with drug prosecutions, one can expect that Virginia state prosecutors will agree to a federal prosecutor’s request to start your prosecution in federal court under the federal harsh child pornography prosecutorial and sentencing scheme, or to transfer your prosecution to federal court. In addition to the foregoing mandatory minimum federal sentencing scheme for even receiving CP, the advisory/voluntary federal sentencing guidelines send the guidelines substantially upward for even possessing 600 or more CP images. U.S. Sentencing Guideline §2G2.2(b)(7)(C). Under said sentencing guideline, each video “shall be considered to have 75 images”, which means 8 videos meets the foregoing 600 image threshold.  Application Note 6(B)(ii) to U.S. Sentencing Guideline §2G2.2.

Federal authorities might not make that decision until your seized digital devices have been analyzed by police computer forensic experts. On top of that, the separate sovereigns doctrine enunciated by the federal Supreme Court allows CP to be prosecuted simultaneously or consecutively both in federal and state court. Factors that federal prosecutors might consider in deciding whether to pursue a CP conviction in place of state prosecutors might include such factors as federal prosecution priorities, how busy the federal prosecutor’s office is, and the seeming egregiousness of the alleged criminal activity. A Virginia criminal defendant and their lawyer may have little influence on whether a CP or drug case is taken over by the federal authorities short of pursuing an early plea deal with the Virginia county assistant Commonwealth’s Attorney, with the hope (if not the express agreement) that the federal authorities will not get involved in a separate federal prosecution.

Why do I as a Fairfax criminal lawyer and First Amendment advocate warn you about even seeking access to legally protected explicit adult sexual videos and images?

I am a Fairfax criminal lawyer who has also for years advocated for broad-based free expression and First Amendment rights, which has included my representation of members of the adult entertainment industry. I do not like the idea of self censorship against activities that should be lawful, including possession of sexual images and videos of adults. Consequently, this article (as with all my online articles) is not advice, but is food for thought for you to make informed decisions about your online and offline activities with sexual imagery in terms of harsh child pornography laws at the Virginia state and federal levels. On top of that, decades-long Virginia and federal laws remain in force against obscenity, which the Supreme Court has extensively left to juries to decide if the material is obscene or not, and which applies to images of adult performers as well.

What do I do if police raid my home seeking CP evidence?

In the United States, you have the right to remain silent with the police and for your silence not to be held against you. You have the right to decline consenting to searches. If the police show up to your home or office to search for CP, illegal drugs or contraband, you have the option to ask the arriving law enforcement authorities (LEO) if you are permitted to leave, which can be a good idea for such reasons as quelling any temptation you might have to communicated with police, and to avoid police observing your nonverbal cues (including your looking in the direction of the contraband). Whether or not the police say that have a search warrant, your clearly saying you do not consent to a search warrant should not hurt you and may help you. Do not throw in the towel when investigated or arrested for alleged criminal activity, and fully defend yourself against harsh child pornography laws.

Should I call a lawyer if my home gets searched for CP even if I have not been arrested?

Even if you have not been arrested, any police search of your home for CP or any other contraband usually merits your consulting with a qualified criminal lawyer, including about the harsh child pornography laws. As a Fairfax criminal lawyer, I know that a CP raid often leads to a prosecution, and that a prosecution may or may not begin before the completion of a police forensic examination of your seized digital devices. During the time that you await a possible prosecution, I can inform LEO that I am your attorney and that you assert your Fifth Amendment Constitutional right to remain silent, and can say that if there is any prosecution to please inform me so that my client may voluntarily turn themselves in (which voluntary action may enhance your chances of receiving favorable pretrial release conditions from the court).  I can advise you of proactive self improvement steps you can take during that time, to assist with any bond hearing, settlement negotiations and sentencing. For instance, even though federal law presumes imposing no pretrial release for a person even prosecuted for receiving CP, before the bond hearing in such cases, I have presented the court with a mountain of documentation of my client’s pre-prosecution involvement with psychological counseling, regular participation in Sex Addicts Anonymous meetings, and voluntary community service. In both instances, the judge agreed that the absence of any further CP activity by my clients during the many months between the raid and the prosecution reduced the indication of risk that my client would engage in further criminal activity, and the self improvement efforts of my clients also helped to avoid pretrial detention (but this being federal court with evidence of receiving tens of thousands of CP images, those federal clients were placed on pretrial house arrest, with certain exceptions for leaving their home.) At the Virginia state court level, a CP receipt or possession defendant’s prospects of being released without house arrest pretrial can be better than at the federal level.

Fairfax criminal lawyer Jonathan Katz does not flinch about your alleged nor actual criminal offenses. All Jon Katz cares about is pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 for your free initial in-person confidential consultation with Jon about your court-pending case.