Child Pornography, Possession or Distribution of Child Sexually Abusive Material

Charges relating to child pornography are on the rise. Law enforcement is usually notified via an alert regarding a file sharing service. If a filing sharing service is used by people peddling child porn and you are on it, you may get a knock of your door from law enforcement. Typically they watch a person’s online activity for several months before moving in. The the cops come to the door they actually not idea what they will find but they are determined to find something.

Surprisingly, many people charged with child porn have little to no criminal record prior to these charges. And if they do, the crimes are often not sex crimes. Most people who are charged with child porn have never had a criminal sexual conduct charge and most people charged with criminal sexual conduct have not interest in child porn. There is some over lap, but they two types of people are different.

Common Child Pornography Related Charges in Michigan

Child pornography charges can broken down into two broad categories 1) possession and 2) distribution. A third type of crime, using a computer to commit a crime is almost often tacked onto these charges:

Possession of Child Porn (Child Sexually Abuse Material Possession MCL 750.1450(c))

This carries a maximum penalty of 4 years in prison and a maximum fine of up to $10,000. This also requires the offender to register a Tier 1 sex offender; the registration requirement can enhanced if the offender has prior sex offenses.

In order to prove a person is guilty of possessing child pornography (or accessing it), the Michigan Model Jury Instructions require all of the following to be proven:

These are the exact instructions given to a jury in a case like this. While this may be confusing, your attorney can help you navigate the parts that apply o your case.

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 illustrations1 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 any of the following that apply:] 

(a) sexual intercourse, which is genital-genital, oral-genital, anal-genital, or oral-anal penetration, whether the intercourse is real or simulated, and whether it is between persons of the same or opposite sex, or between a person and an animal, or with an artificial genital, [and / or]

(b) erotic fondling, which is the touching of a person’s clothed or unclothed genitals, pubic area, buttocks, female breasts, or the developing or undeveloped breast area of a child for the purpose of sexual gratification or stimulation of any person involved, but does not include other types of touching, even if affectionate, [and / or]

(c) sadomasochistic abuse, which is restraining or binding a person with rope, chains, or any other kind of binding material; whipping; or torturing for purposes of sexual gratification or stimulation, [and / or]

(d) masturbation, which is stimulation by hand or by an object of a person’s clothed or unclothed genitals, pubic area, buttocks, female breasts, or the developing or undeveloped breast area of a child for sexual gratification or stimulation, [and / or]

(e) passive sexual involvement, which is watching, drawing attention to, or exposing someone to persons who are performing real or simulated sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity for the purpose of sexual gratification or stimulation of any person involved, [and / or]

(f) sexual excitement, which is the display of someone’s genitals in a state of stimulation or arousal, [and / or]

(g) erotic nudity, which is showing the genital, pubic, or rectal area of someone in a way that tends to produce lewd or lustful emotions.

[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 known3 that 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:

(a) An average person, applying current community standards, would find that the material appealed to an unhealthy or shameful interest in nudity, sex, or excretion.4

(b) A reasonable person would not find any serious literary, artistic, political, or scientific value in the material.

(c) The material shows or describes sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity, as previously described for you.

(6) Third, that the defendant [knew that (he / she) possessed / knowingly looked for] the material.

Distribution of Child Pornography (Child Sexually Abusive Activity MCL 750.145(c)2)

This carries a maximum penalty of 20 years and a maximum fine of $100,000. This also requires registration as a sex offender.

It is important to note that more and more prosecutors are charging people with distribution simply for downloading an image to themselves. In other words, you can be charged with distributing child porn to yourself. You don’t need to sell or share it with a third party to be charged with a 20 year felony.

Using a Computer to Commit a Crime MCL MCL752.796

This is a thrown on crime that prosecutors use to add teeth to charges and to use a plea bargaining chip. As a practical matter, it is almost impossible to use a computer to NOT commit one of the above crimes these days. This charge can carry a maximum penalty of 20 years depending on the seriousness of the underlying charge.

Grand Rapids Criminal Defense Lawyer

If you being accused/charged with child pronography, or you know someone that is, please call us today.  You need an experienced Grand Rapids criminal defense lawyer that can provide you with the level of experience you deserve when facing your case.

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I also have assisted clients accused of Financial and White Collar crimes in Federal Court. I have helped hundreds of individuals across West Michigan and I can help you to during this challenging period of your life.

Some of my higher profile cases have been covered by the local media. Please see the In the News page for details.

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