Both federal and New Jersey laws prohibit possessing and distributing child pornography, sometimes called “child sexual abuse material” or CSAM. Getting convicted of a CSAM-related offense or being accused of sexual child abuse can change someone’s life far beyond the severe legal consequences. If you’ve been charged with a CSAM offense you didn’t commit, it’s crucial to hire a sex crime defense lawyer to defend your rights and reputation.
Lawyers will commonly apply the sex crimes defenses below to child porn cases. However, it’s important to remember that no two criminal cases are alike. Contact our criminal defense attorneys with any questions about your specific case.
What Is Possession of Child Sexual Abuse Material?
New Jersey defines CSAM as any photo, video, digital image, recording, or other form of online or offline media that:
- depicts someone under 18 engaging in a prohibited sexual act
- has no serious scientific, literary, artistic, or political value
According to New Jersey Revised Statutes 2C:24-4, it is an offense when someone knowingly possesses, controls, or views CSAM through any means, with or without the intent to distribute the material. The degree of the crime varies depending on how many items of CSAM the convicted person was found to have possessed:
- Third-degree offense – Less than 1,000 items
- Second-degree offense – 1,000 to 100,000 items
- First-degree offense – Over 100,000 items
It’s also against federal law to possess child pornography, with or without the intent to distribute it. The federal government may prosecute CSAM cases involving:
- The Internet
- Text messaging
- Peer-to-peer filesharing networks
- The U.S. Postal Service
- A common carrier
- Another person or group taking the material across state or foreign lines
If convicted of child porn possession in federal court, you could face up to 10 years in prison, fines, and supervised release. If someone was previously convicted on charges for sexual assault, whether state or federal, they could face at least a 10-year mandatory minimum sentence for child porn possession.
Types of Defenses
Your lawyer will investigate the facts of your case to determine which defenses could apply. They may argue that you didn’t knowingly possess CSAM, that the material was not CSAM by legal definition, or that you were charged based on improper or unconstitutional procedures.
Unintentional Possession
Your lawyer may use the unintentional possession defense to argue that the CSAM was not yours or that you did not possess the material to the best of your knowledge.
Unintentional possession defenses are common in cases involving used or work computers, shared networks, and public networks. They may also apply to cases where a spiteful person downloaded CSAM to someone’s computer to frame them for the crime.
To build this defense, your criminal trial attorney will work with a forensic expert to determine:
- When the material was downloaded and accessed
- Who was using the computer at that time
Accidental Possession
A jury can only convict you of a child pornography offense if they find beyond a reasonable doubt that you committed all elements of it. A crucial element of child porn possession is intent, where someone knowingly and actively downloads and uses the material.
A computer virus, ransomware, spam, or adware program could download child pornography without a user’s knowledge or consent. If you believe this happened to you, your lawyer may argue that you did not knowingly or intentionally download or access the material. Just like the unintentional possession defense, your lawyer will collaborate with forensic computer experts to determine how the material got onto your device.
Illegal Search & Seizure
Under the Fourth Amendment to the U.S. Constitution, you have freedom from unreasonable searches and seizures. However, procedural errors still occur in practice.
Law enforcement must have a warrant to examine or seize your devices, signed by a judge, and that specify the exact objects. That means the following types of evidence are inadmissible in court:
- Evidence that was obtained without a warrant
- Items and devices that were beyond the scope of the warrant
- Evidence that is determined to be falsified
- Evidence gathered through a warrant obtained under false pretenses
Entrapment
The entrapment defense argues that law enforcement persuaded someone to download child pornography and that they would not have done so otherwise. This is a common defense in cases involving sting operations, where police may bait individuals into downloading material under the pretense that it’s CSAM but where it is not labeled as CSAM or not CSAM at all. Other sting operations may involve forced confessions or statements, which are not admissible in court.
While some people arrested in stings actually committed an offense, others are not guilty and simply get “caught up” in the operation. A criminal defense attorney can investigate law enforcement’s procedure and determine whether they followed the rules.
Not a Child
Both state and federal law explicitly define what constitutes child pornography and what does not. Content that exclusively involves people aged 18 or older or that has a legitimate scientific, educational, or religious purpose is not child pornography.
If the prosecution cannot prove that those depicted in the material were legal minors at the time, then you may have a defense.
Psychological Addiction
Psychological addiction isn’t an affirmative defense to child pornography charges or sex crime charges. In other words, claiming child pornography addiction alone will not increase the odds of the charges getting dismissed. However, it could be a mitigating factor for the judge to weigh when determining a sentence. If you’re convicted of child porn possession, a judge may require you to participate in a rehabilitation program in place of some prison time.
Contact Our New Jersey Criminal Defense Lawyers Today
If you’ve been accused of a child pornography offense in New Jersey, you likely have many questions. How does the court process work? How much will sex crime defense cost? What’s the best path forward? The sex crime defense attorneys of Keith Oliver Criminal Law are ready to investigate and find the answers you need.
Our team has deep knowledge of the local criminal justice system and decades of combined experience across the full spectrum of criminal cases. We’ll explain everything to you at every step of the way. For a free initial case review, contact us today at any of our Middletown Township, Jersey City, Bridgewater Township, or Hamilton Township offices.