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What are Defenses for Child Pornography?

Posted on: July 19, 2021

Possessing and distributing child pornography is a serious crime. Both federal and state laws make child pornography illegal, and both levy harsh penalties for those convicted. Federal charges commonly apply because of the electronic nature that houses illegal child pornography and takes it across state lines.

Being charged with child pornography affects not just the accused, but also people they know. These charges usually find their way into the public knowledge sooner rather than later. This can seriously affect the accused’s personal and professional life. While scary, attacking these charges head on is the best course of action. Contacting a lawyer experienced in criminal defense is strongly advised. What follows is a brief discussion of just a few of the ways someone may be able to defend themselves against a child pornography charge.

Defendant is Not in Possession

When a person is charged with child pornography, whether by a federal agency or a state agency, the prosecutor must prove the defendant was in actual possession of the illegal material. And that is not always easy for them to do.

Most child pornography today is stored on computers or through file sharing services. If a person uses a shared computer, they may unwittingly use a computer that has child pornography on it. That does not make the person guilty of a heinous crime.

In a case in which multiple roommates share a single computer, one roommate may accuse another roommate of being the actual owner of the child pornography. In reality, the accuser is the one who has downloaded, viewed, or distributed the child pornography and is simply trying to save themself from criminal charges.

If a person can prove that, even if they used the shared computer, they did not know the illegal material was on the computer or did not download or access it, they may have a valid defense. However, this is much easier said than done and may require forensic experts to establish when the material was downloaded to show the defendant could not have been the one using the computer at the time.

Unintended Possession

For an unintended possession defense to be successful, the defendant must prove that they did not intend to receive child pornography. Maybe they opened an email from someone they did not know, or they received a text message with the illicit material. A defendant may also argue that they were looking for pornography online but did not intend to view child pornography.

For this defense to work, a forensic expert may be required. A defendant may need to show their browsing history and that they have no history of viewing this type of pornography. They may need to subject themselves to intense personal scrutiny to avoid a conviction of this serious charge.

The Content is Not Child Pornography

To be convicted of possessing child pornography, an individual must have actually viewed or possessed child pornography, not some other type of porn. For something to qualify as child pornography, the image or video must show naked children or children engaging in sexually explicit conduct.

If there are no children in the photo or video, it simply cannot be child pornography. There are some exemptions, as well. Some educational videos and historical films and photos with certain depictions of child pornography are exempt from federal and state laws because of their historical and educational significance.

Illegal Search and Seizure

Getting into constitutional rights, some defendants may be able to claim their rights were violated and have the material thrown out. If a defendant can prove a procedural error or a specific violation of their rights, such as an illegal search and seizure by police, they may be able to have the evidence made inadmissible and their case thrown out of court.

Police sometimes expand on the truth to get a warrant issued. If that happens, a defendant may be able to show that if a police officer had been truthful, the warrant would not have been issued and anything the police found has become inadmissible. A defendant may also argue that the police went beyond the scope of the warrant, and that is how they found the illicit material. For example, if a warrant states that police can search a person’s residence but find child pornography in the trunk of the person’s car, the police have violated the terms of the search warrant, and a criminal defense lawyer may be able to get the evidence found in the car dismissed.


This defense may not help someone avoid a child pornography conviction. It may, however, help to reduce a defendant’s sentence.

The medical field has recognized different psychological addictions. Although it might not be socially acceptable to look at child pornography, it is possible that a defendant had no control over their decision. Proving this through the use of medical experts may help to reduce the sentence for a defendant. It may also serve to help keep the defendant out of prison, instead going to a medical facility that could help them.


When police entice or encourage someone to commit an illegal act, that may rise to the level of entrapment. Proving this may help the defendant dismiss the charges against them.

To be entrapment, however, the defendant must prove that they would not have committed the illegal act without the encouragement of police. Therefore, if police set up a sting operation that catches a person attempting to view or distribute child pornography, that might not be entrapment. If, however, police offer to sell a person pornography but do not describe the picture or video as child pornography, a defendant may be able to claim entrapment as their intention was to buy porn, not child porn.

Child Pornography Penalties

The penalties for child pornography vary by state and federal law. To indicate what a defendant might face, below is a brief discussion of New Jersey penalties. An important note: In every case except a third-degree crime, the defendant must register under Megan’s Law as a sex offender. This is not only embarrassing, but also can limit the jobs a person can have and even where they can live.

First-degree offense. The most serious offense and one that requires sex offender registration, a defendant usually faces a first-degree charge when they have 100,000 or more images of child pornography in their possession. This crime comes with a minimum prison sentence of 10 years and may be as long as 20 years.

Second-degree charges. When someone has between 1000 and 100,000 images of child pornography, the state can charge them with a second-degree crime. A conviction of a second-degree crime will result in the person having to register as a sex offender and spend between five and 10 years in prison.

Third-degree offense. If a person has less than 1000 images of child pornography, the state can charge them with a third-degree crime. It is also a third-degree crime to view, film, create, or depict a child engaging in an illicit sexual act. For punishment, a conviction may result in up to five years in prison. A pretrial diversion program may be available for a third-degree crime, but prosecutors often object because of the criminal activity.

Monmouth County Criminal Defense Lawyers at Ellis Law Provide Child Pornography Legal Support

Child pornography charges are extremely serious. If convicted, your personal and professional life may never be the same. As scary as it may be, you do need to fight this head on. Sitting back will have dire consequences. Fortunately, you have legal options. The Monmouth County criminal defense lawyers at Ellis Law can provide you legal advocacy, helping you determine the right defense for your situation. Call us today at 732-308-0200 or contact us online to schedule your free consultation with our experienced team. We proudly serve our neighbors in Freehold, East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, Monmouth County, Marlboro, and Ocean County, as well as Brooklyn and New York City.

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