Crimes against children are mainly committed by people whose mandate is in the care and guardianship of the children. Some of these crimes include physical, emotional, and psychological abuse. The vulnerability of children to abuse has necessitated Virginia to set stringent laws against anyone that is found guilty of committing a crime against children. Child pornography is among the most severely punished crimes against children in the state.

Both federal and state laws make it illegal to possess, produce, or distribute pornographic materials involving a minor under the age of 18. While the statutes protect the child, there are instances when innocent people are charged and convicted of such a severe crime. To avoid this, you need the help of a competent criminal attorney. At Virginia Criminal Attorney, we serve the areas of Fairfax and Northern Virginia to protect the rights of those that are facing charges for child pornography.

Legal Definition of Child Pornography

Throughout the United States, children enjoy the protection of the law. Both federal and state laws make it illegal for any person to commit a crime against a child. Children are usually under the care and guardianship of adults because of their vulnerability to getting hurt.  Crimes against children in Virginia are many, and child pornography is among the most rampant and most severely punished crimes in the state.

Legally, child pornography refers to any visual depiction of sexually explicit conduct that may include films, photographs, pictures, and videos. Computer-generated images and images produced electronically, mechanically, or by other means are considered if used in the crime.

The production of that visual depiction becomes child pornography if it involves the use of children engaging in sexually explicit acts. This visual depiction could also be a computer, digital, or computer-generated image, which is not different from that of a child engaging in sexually explicit acts. Child pornography will also include visual depiction that has been modified, created, or adapted to look the same as a minor engaging in sexually explicit acts.

Any person who knowingly possesses distributes, duplicates, publicizes, produces, sells, or prints child pornography will face charges for child pornography in the state of Virginia. It means that there are different types of child pornography crimes in the state, each carrying severe penalties for the offender. For that reason, it is essential to get in touch with a competent criminal attorney if you are facing charges for child pornography in the state today. An experienced attorney will take you through the legal process, advise, and represent you in court for a favorable outcome.

Virginia Laws on Child Pornography

Child pornography statutes in Virginia are provided under Section 18.2-374.1:1 of Virginia Penal Code. The law states that it is illegal for a person to possess, reproduce, distribute, solicit, and facilitate child pornography.

The law states that:

  1. A person who possesses child pornography content of any kind knowingly is liable to a Class six felony.
  2. Anyone who commits the offense of 2nd or successive violation of the above subsection is liable to Class five felony
  3. A person will face 5 to 20 years behind bars if they generate child-pornographic-materials through a computer. They are also liable if they sell, give away, distribute, purchase, or display the materials electronically.  The same goes for a person who possesses child pornography material with the intention of selling, displaying, distributing, selling, or giving away.
  4. A person that knowingly entreats, commands, or attempts to convince another person to submit, send, or provide him/her with the material. Any transfer of child pornographic material as a way to gain access to an association, a group, or assembly of people engaged in the sharing or trading of such content will also face the same penalty as above.
  5. Anyone who commits a 2nd or subsequent offense as listed in 3 and 4 above is likely to face between 5 and 20 years in prison
  6. A person who intentionally accesses the internet with a purpose of facilitating payments to access child pornographic material will face Class 4 felony conviction

Note that any suspicion of child pornography by any person will subject that person to a legal seizure and forfeiture in the state, as provided under Section 19.2-386.31 of the state’s Penal Code.

Child pornography can also be in the form of a title, text, or through a person’s form. This is the case as long as the person whose appearance is used, depicts, or represents the appearance of a child in a sexually explicit graphic material. 

A minor/child, in this case, will be anyone that is below the legal age of 18.

The prosecution of child pornography offenders in the state of Virginia happens within the location where the crime was committed. It is also carried out where the child pornography material was found, produced, reproduced, received, sold, or possessed.

Types of Virginia Child Pornography Offenses and Penalties for Each Offense

The crime of child pornography in particular in the state of Virginia. The law specifies the sexual acts, body parts as well as simulated sexual conducts that could be shown in a photo, image, or video. Note that any simulated sexual act counts as child pornography, even if it involves a minor in clothes. Some of the common offenses under this law include:

Sexting

The crime is committed by sending clear sexual images, messages, videos, or pictures via the internet. It is prevalent, especially with pre-teens and teenagers. However, the law is apparent that any kind of minor sexting is illegal and can be convicted as child pornography. Note that a case of a man of 40 years sharing pictures of minors he molests will face charges the same as a pre-teen who takes naked pictures of their underage girlfriends.

In the state of Virginia, charges that come from sexting fall into two classes. The first is crimes involving child pornography, for instance, possession and creation of child pornographic materials. The other is a crime involving actions that result from sexting, for example, indecent exposure and non-consensual photography.

Creation of Child Pornography

The creation of child pornography in Virginia, as provided under Section 18.2-374.1 of the State Penal Code, is a grave felony. The offense is punished by:

  • Between 1 and 20 years of imprisonment if the minor is 15 years and above
  • Between 3 and 30 years of imprisonment if the offender is older than the child by seven years
  • Between 5 and 30 years of incarceration if the minor is less than 15 years of age
  • Between 15 and 40 years of imprisonment if the offender is older than the victim by seven years and the victim is below 15 years of age

A second offender facing charges for the creation of child pornography is likely to face between 15 and 40 years of incarceration based on the actual age of the minor and the defendant.

Here are some acts that could qualify as the creation of child pornography in the state:

  • Soliciting, or enticing a child to be used for child pornography. It means that production will still occur whether the minor agrees or not the minor consents to the act. For example, a teenage boy who asks a minor to allow him to take a naked picture of her will commit a felony if he proceeds to produce the image. He is culpable even if the minor agrees.
  • Producing, preparing to create, or any attempts to produce child porn. Merely taking a nude picture of a child is enough to have you convicted of child porn. A man who attempts to take a picture of a child by sticking their phone camera under the girl's skirt can be charged with the offense, even if he does not succeed.
  • Knowingly taking part or participating in the creation of child porn. Participation, in this case, is extensive and can include people who are simply friends with child pornography offenders. It could also happen if you help or encourage a friend to download or photo-shop pornographic pictures or minors.

 

You could also face charges if you loaned a friend, a camera that was used in taking such pictures. Even merely standing outside to be on the lookout as the actual perpetrator commits the offense will be considered as participating in child pornography. The same applies to a child who subjects themselves to the creation of child porn. If a minor is found guilty of taking dirty pictures of themselves could be convicted of the same offense.

  • The financing of child pornography. This could be committed in various ways, including lending money to your friend or loaning out your phone or camera. If you allow your friend to use your email account for the commission of child porn, you will be held liable.

Possession of Child Pornography

According to Section 18.2-374.1:1 of Virginia laws, knowingly possessing any child pornographic material is convicted as a Class 6 Felony, punishable by up to five years of imprisonment. Subsequent convictions for a person who has been previously convicted of possessing child pornography are convicted as Class 5 Felony, with a prison sentence of 10 years as a maximum. Possession, in this case, can take two forms:

  • Where intentions are not relevant
  • Where the possession happens when the offender can view or retrieve the images by several other means

Having child pornographic content is treated the same way as possession of weapons or drugs. If you are found in possession of drugs, for instance, it is not a matter if you had used them or were about to use them. Neither is it a matter of you only found them and were about to discard them. Either way, you will face arrest and subsequently get convicted.

Example: When a teacher discovers nude pictures of a child on a student’s phone, they should call the police immediately. The teacher is not required to touch it or give the phone back to the minor.

The law takes into account the fact that a child could be sent a dirty photo by his/her friends. However, this could work against the minor even if she does not look at or approve of the picture. However, the trial has to be conducted as long as the child was found in possession of child pornography. It, therefore, means that the minor will have to face arrest, just like other offenders.

The law is stringent when it comes to child pornography. That is why pedophiles who have resulted in watching child pornography online without downloading pictures are not spared. Forensic computer experts could be used to recreate images of child porn from the temporary files left on the offender's hard-drive after watching the illicit content online. If there is proof that you were indeed watching child porn online, you will face charges of possessing child pornography.

Distribution of Child Pornographic Material

The distribution of child porn is both a severe and straightforward crime, as provided under Section 18.2-374.1:1 of Virginia Penal Code. A first offender is sentenced to between 5 and 20 years of imprisonment if found guilty of copying, reproducing, giving away, or electronically transmitting child pornographic materials. Note that copying such content from your computer to phone and vice versa, or emailing a pornographic picture of a child to yourself is distribution. Most people who have faced charges for possessing child pornography have also faced disposition of charges for child pornography.

Multiple Counts of Virginia Child Pornography

In the state of Virginia, the law treats every count of creation, possession, and circulation of child pornography as separate offenses. If, for instance, a teenage boy takes four pictures of his girlfriend, who is a minor with his phone, then he copies those pictures to his computer. As per the state laws, the teen has committed four counts on the Creation of child porn and eight counts of possessing child porn. He will also face four counts of child porn distribution if he distributes, attempts to spread, or has the intention of distributing those photos.

Every count carries a separate punishment. Every count of porn production will earn the offender between 1 and 20 years of imprisonment. Every count of porn possession is punishable with a maximum of 5 years of prison time. Every count of porn distribution is punishable by between 5 and 20 years of incarceration

Possible Defenses for Charges for Child Pornography

Because of the consequences of child pornography mentioned above, it is crucial to work closely with an experienced criminal defense lawyer if you are facing charges for this crime. Finding a competent attorney is the first thing you should do after an arrest. With an attorney by your side, discuss the facts of your criminal case and devise a way forward. Let your attorney know the outcome you are hoping to achieve. With that, he/she will decide on the best legal defense they can use to grant your desire. Some of the arguments your attorney can use to help your case include:

  1. You were Mistaken about the Minor’s Age

To be sentenced to child pornography in the state of Virginia, you must have known that the pornographic material you had was of a person below 18 years. If not, the prosecutor will not be able to convict you with the offense. Sometimes people get mistaken about the age of others, especially if they did not expect to find such illicit content of a child. If you weren’t aware that the images you had on your phone or computer were of a child, the court might drop your charges. The same thing could happen if there is proof that you were not aware that the person whose nude pictures you took was a minor.

  1. Entrapment

This defense would work if your rights were violated by the police and caused you to act in a way that resulted in the commission of a child pornography offense. The court will, however, need proof of police involvement in the commission of a crime you could not have done without their influence.

  1. You Were Not Aware That The Content Was Obscene

Another essential element of this crime is that the offender knew that the content of the material in their possession was obscene. If this were not the case, you might not be guilty of child porn. 

  1. You Had a Legitimate Purpose

Virginia child pornography laws do not apply to people whose possession of child pornographic content is justifiable. If the content is useful for medical, governmental, scientific, and judicial or law enforcement purposes, then the offender may not be found liable for his charges. People who are excluded by this section of law include physicians, psychologists, attorneys, scientists, and people working in the Department of Social Services, among others.

Find a Virginia Criminal Attorney Near Me

The risk of an unresolved charge on child pornography is enough to mess your life. However, an experienced criminal attorney can help change the outcome of your case. If you are in Fairfax and Northern Virginia and you are facing charges for child pornography, get in touch with us. At Virginia Criminal Attorney, our commitment is in ensuring that our clients are well-advised, well represented and that their rights are safe throughout the process. Call us at 703-718-5533 today.