Can I be Arrested for Accidentally Accessing Child Porn on the Internet?

November 7, 2022 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

The internet is a vast and confusing space that we’re all still trying to figure out. There are times when simply browsing the internet could come with illegal acts. For example, while trying to download a movie or TV series you could accidentally click on a link that has a pop-up of child pornography. Despite immediately closing the window, there is still the concern that you have done something against the law.

The internet can hold content that is both labeled or mislabeled, which can misguide internet users to sites they may have not had any intention of going to. There are also individuals online who have malicious intent, who may misname and share files to attempt to incriminate other users. Even by accidentally stumbling across a link to child pornography, you may have a sickening feeling of future legal entanglements.

Florida has extremely harsh laws against sex crimes involving children. In addition to hefty fines and potential imprisonment, a defendant convicted of a sex crime against a minor may also have to register to the state’s sex offender registry. Registering on the sex offender list could cause lifelong issues, both professional and personal. These consequences include limitations on careers, housing, and relationships. This makes it very important to try and prove that any viewing of child pornography was completely accidental and that there was no intent in the actions leading to the viewing.

Some questions to address with a skilled defense attorney in an accidental possession of child pornography case are:

1. How much time was spent by the viewer on the specific website/file containing child pornography?
2. Were any of the links or files accessed by the defendant shared or distributed anywhere else?
3. Was the content being accessed by the owner of the computer, or was a guest borrowing the computer when the illegal website/file was opened?

We will provide information on both federal and state laws on child pornography, as well as possible defenses that can be used in a child pornography case.

Federal Child Pornography Laws

According to the Department of Justice, child pornography images are considered illegal contraband under federal law and are not protected under the First Amendment rights. Under Section 2256 of Title 18 of the United States Code, child pornography is defined as any visual depiction of sexually explicit conduct involving a minor (someone under the age of 18). The legal definition of sexually explicit conduct does not require that the image depict a child in sexual activity, instead, the image need only be sexually suggestive.

Visual depictions include any of the following content:

• Photographs
• Videos
• Undeveloped Film
• Undeveloped Videotapes
• Electronically Stored Data
• Digital or computer-generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor.

It is important to note that a person accused of possession of child pornography can be prosecuted under state child pornography laws in addition to, or instead of, federal law.

A defendant who violates any of the federal child pornography laws can face harsh consequences. A first-time offender accused of producing child pornography can result in the statutory minimum of 15 to 30 years in prison. A first-time offender accused of transporting child pornography in interstate or foreign commerce could face a statutory minimum of 5 to 20 years in maximum prison. If the defendant has had prior convictions, the penalties can be more severe.

Possession of Child Pornography in Florida

Florida Statute section 847.001(3) refers to “child pornography” as any image depicting a child under the age of 18-years-old engaging in sexual conduct of any kind. This includes images obtained from a website or subsequently downloaded from the internet.

Florida law defines “sexual conduct” as any of the following acts:

• Sexual Intercourse
• Masturbation
• Deviate Sexual Intercourse
• Simulated Sexual Intercourse
• Sadomasochistic Abuse
• Sexual Bestiality

Any possession, distribution, or manufacturing of child pornography has the penalty of a third-degree felony in Florida. A third-degree felony can result in up to a $5,000 fine, up to five years in jail, and up to five years of probation. In addition, there could be federal charges brought against you for downloading any child pornography images onto your computer.

There are more severe charges in place for a defendant accused of sharing child pornography. Sharing an image of child pornography in Florida has the penalty of a second-degree felony. A second-degree felony can result in up to a $10,000 fine and up to fifteen years in prison.

The most severe penalties are reserved for those either producing or promoting child pornography. A defendant accused of promoting or producing child pornography in Florida has the penalty of a first-degree felony. A first-degree felony has a penalty of up to a $10,000 fine and up to 30 years in prison. In Florida, getting convicted of this crime can carry a minimum prison sentence of 5-13 years.

One important fact to note is that Under Florida Statute section 827.071(5)(a), each image of child pornography found on a defendant’s computer can be prosecuted as a separate count of Possession of Child Pornography charge. If the image contains more than one child, then the defendant may be charged for each child as a separate offense. Child pornography investigations typically result in the finding of more than one image—which can sometimes even result in 10s or 100s of counts of child pornography. Since the law allows for each image to be charged separately, it shows just how important it is to find an experienced Tallahassee child porn defense attorney to build a defense for your case.

Information on Florida’s Sex Offender Registry

First, it is important to distinguish the difference between a sex offender and a sexual predator. Florida uses both terms to identify individuals who have committed a sex crime; however, there are important distinctions between the two terms.

A sex offender is an individual who was convicted of a specific sex crime in Florida and was released from their sanction on or after October 1^st, 1997. A person would be considered a sex offender if they committed any of the following sex crimes:

• Lewd and Lascivious Offenses
• Sexual Battery
• Child Pornography
• Procuring a Minor for Prostitution
• False Imprisonment for a Minor

A sexual predator is an individual who has been convicted of a first-degree felony sex crime, or a person who has had one or more second-degree felony convictions within a 10-year period. According to the Florida Sexual Predators Act, individuals are considered sexual predators if they are repeat sex offenders, prey on children, and often (but not always) use physical violence. A person would be considered a sexual predator if they committed any of the following sex crimes (but not limited to):

• Selling or buying minors for sexually explicit activities
• Kidnapping a minor and committing a sexual offense
• Sexual battery against a minor or incapacitated person

Florida Statute section 943.0435 defines the sex offender registry list and explains how an individual must be convicted of a “qualifying offense” to be placed on the list.

Individuals who have been convicted of a child pornography possession charge are placed on sex offender probation and are considered sex offenders who must register under this specific classification. Registration on the sex offender registry can last for 15 years, 25 years, or a lifetime depending on the severity of the offense.

Florida has three levels used to classify sex offenders. Florida Statute section 775.21 codifies the three levels, with varying levels of severity. A “level 1” sex offender is issued when it is a lower-level crime in which the defendant does not have a criminal nature. A person on the Level 1 offender list only has to report to the local sheriff’s office twice a year and may have an easier time being removed from the registry down the line.

An individual issued as a Level 2 offender means that their criminal history and likelihood to re-offend is higher than those classified as a Level 1 offender. A Level 2 offender must report to the local sheriff’s department four times a year and depending on the severity of the offense they may face additional consequences. Similar to a Level 1 offender, a Level 2 offender has the potential to be removed from this classification after a specified period of time.

A Level 3 offender is the most severe classification—meaning the individual has a high likelihood of reoffending. A Level 3 offender is officially deemed a “sexual predator” which means the person would have at least one felony charge of first-degree sexual misconduct, or else two felony charges of second-degree sexual misconduct. Unlike those registered as a Level 1 or 2, a Level 3 offender can never get taken off the registry. Level 3 offenders will face the most severe consequences.

To find out more about everything you need to know about the sex offender classification levels, read our page here.

Double Prosecution

The Supreme Court has held that under the Dual Sovereignty Doctrine the Double Jeopardy Clause does not apply to suits by separate sovereigns, even when they are criminal suits for the same offense.

The Court explained that this meant that separate states could prosecute a person for charges that they were convicted for in another state, so long as the person broke the laws of each separate sovereign. Similarly, a person who is charged with possessing child pornography may be charged in both Florida and Federal court if each government alleges that the defendant violated each of their laws.

A defendant can try to defend against this double prosecution if the facts of their case show that there is a “Sham Prosecution” going on. This exception to the dual-sovereign doctrine exists when one sovereign is so dominated, controlled, or manipulated by the other sovereign that they are not acting of their own volition. The defendant must show that either (1) one sovereign has essentially been manipulated by the other sovereign into prosecuting, or (2) the state and federal prosecutor are the same person.

Defenses to Child Pornography Possession

The following is a list of potential defenses to a possession of child pornography case in Florida:

• Adult Depiction – If the victim in the alleged child pornography was over the age of 18, it can be used as a defense for the defendant.
• Transitory Possession – In some cases, the defendant may have had no intent to view child pornography but was unwillingly sent an image.
• Computer Virus – The defendant could have received a virus on their computer that had child pornography images attached.
• Trojan or Computer Worm – An internet trojan or worm could have embedded unwanted images of child pornography onto their computer.
• Backdoor Created by Another User – Another person aside from the defendant could have pushed unwanted images of child pornography onto the defendant’s computer.

The best way to figure out which defense is applicable to your case is by contacting a skilled defense attorney in your area. For many of the above-listed defenses, a computer forensic expert witness could be extremely beneficial.

Refuting the Charges with the help of an Expert

In most child pornography cases; the defendant will need the help of an experienced expert to help prove that they were not in fact at fault. By having a computer forensic expert analyze the defendant’s computer, the defense can help provide a defense against the criminal charges,

The testimony of an expert witness can play a crucial role in the defendant’s case. Their analysis and testimony can help refute the charges, which is crucial in defending against the conviction. Having an expert witness on your side can help explain how you did not intentionally acquire the evidence against you.

To read more about computer forensic experts and how they can help in a criminal case, find our blog here.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a child pornography crime, you should immediately seek out legal advice. An experienced Tallahassee criminal defense attorney will work with you along with expert witnesses to prove your innocence. Don Pumphrey and his team at Pumphrey Law Firm have represented clients across Florida for various criminal charges, and vow to stand in your corner to protect your future. Contact us today at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

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