If you have been paying attention to the crime section of the paper lately, you may have noticed a rise in the amount of arrests for child pornography charges in Louisiana and the nation at large. NBA player Chris "Birdman" Anderson and Subway spokesman Jared Fogle have been investigated recently for crimes involving child pornography.
Make no mistake about it. Louisiana Revised Statute 14:81.1 (pornography involving juveniles) is considered a serious crime. There is a 5 year minimum sentence on possession and pursuant to Louisiana Revised Statute 15:542, a person convicted of this crime must register as a sex offender for life. More bad news: winning a case against these charges is difficult. However, there are defenses and an attorney experienced defending child pornography charges will know how to exploit them to get the best result possible. The defenses in most instances are:
1) I Didn't Do It. This defense typically applies when pornography is found on a computer that many people have access to such as at work. A competent forensic expert can demonstrate that the child pornography was put there by someone else. A more difficult situation can arise when a scorned spouse downloads the contraband on a family computer and then calls the police "anonymously".
2) It Isn't Child Pornography. Certain sexualized images of children can be animated or computer generated. Courts have consistently held that computerized and animated images are not child pornography. In other words, the victim must be a real child. Additionally, other images of real children such as baby pics in a bathtub do not qualify as pornography either. The image must have a sexual component to it.
3) The Police Screwed Up. If the warrant to search for contraband was obtained under false pretenses, a defendant can and should file a Motion to Suppress any evidence seized by the police. Sometimes a warrant is proper, but police search beyond the scope of the warrant by examining devices not listed on the warrant, such as a cell phone or an off site computer.
4) I Didn't Mean It AKA Lack of Intent. The defendant may have been sent an email from an unknown source and he clicked on the link that led to a website containing child pornography. Or a legitimate website may have a one letter difference from a website with illegal images. .A good computer forensic expert can show that the defendant did not knowingly and intentionally view activity involving child pornography.
5) The Images Aren't Children. Law Enforcement has become very good at identifying who is in the vast array of child pornography available. However, sometimes they do make mistakes and the people in the images are 18 or older. Also if the age of the actors appears borderline line, it may be a defense that the defendant believed he was looking at images involving actors over 18. Although in Louisiana, lack of knowledge of the victim's age is not a defense, a jury may accept the defendant's reasonable belief that the images contained "actors" over the age of 18 when supported by expert testimony.
6) The Police Made Me Do It. Entrapment is a defense where the police engage in conduct that cause the defendant to commit a crime, he otherwise would not have. In the context of child pornography, an undercover cop may entice a defendant to go to a vaguely entitled website called "Hardcore Teen Fantasies" which contains illegal images. Although, it fails to explicitly mention the age of the actors.
Most child pornography arrests in Louisiana wind up with a guilty plea or a conviction. A criminal defense attorney with experience in handling child pornography cases may be able to tilt the scales in your favor. If you are under investigation for crimes involving child pornography do not hesitate to call me at 504-304-2335