Go to Top

Facing Criminal Charges in Virginia? Call Us at

Roanoke Child Pornography Attorneys

Breaking it down

Child pornography charges will likely invoke strong emotions from people you know – family, friends, neighbors, and colleagues. You face years in prison, thousands in fines, and an irreparable impact on your future if convicted. In addition to local charges, you may also face federal indictment for child pornography.

  • You may have a possible defense for possession of child pornography if you attempted to destroy the material or if law enforcement were the only other parties to view the material
  • Sexting can be charged as distribution of child pornography if the individual featured is under the age of 18
  • Accidental or unknowing possession or distribution of child pornography may be a defense

A charge of possession or distribution of child pornography can ruin your life. With help from an experienced Roanoke sex offender lawyer, you may avoid the terrible outcomes. The act of being charged — even when you’re innocent — can forever alter the way people look at you. It can ruin relationships, affect your job prospects, or impact your custody of your children. You may find yourself fighting not just your local prosecutor at your county courthouse, but a U.S. attorney in a federal courtroom.

If you’re convicted, you’re looking at the possibility of significant jail time and having to register as a sex offender. If you work in a profession involving children, you’ll likely lose that job and be barred from holding one like it again, or even from living near schools or even attending events at your children’s school.

If you’ve been charged with possession or distribution of child pornography in Virginia, it’s highly recommended that you have by your side a qualified and experienced criminal defense lawyer who understands the complex intersection between state and federal laws, the nuances of how different aspects of the crime are defined, and how to look at the evidence to work for the best possible result in your case.

What is Child Pornography?

Virginia Code §18.2-374.1 defines child pornography as “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” The minor depicted has to be a minor at the time the pornography was created and has to be an actual person. “Sexually explicit” includes depictions of bestiality, lewd exhibitions of nudity, sexual excitement, sexual conduct, or sadomasochistic abuse.

Visual material can include photographs, drawings, sculptures, movies, and digital images. It also can include images or streaming videos stored in your computer’s temporary Internet cache when three or more files are present, or undeveloped film.

Child pornography is illegal contraband under federal law. Federal law at 18 U.S. Code Title 18 §2256 defines child pornography as any visual depiction of sexually explicit conduct involving a minor. For purposes of the federal law, the images need only appear to depict an actual minor. A sketch or a computer-generated image with no real human subject could be considered child pornography under federal law even if no actual minor was involved in its creation.

There is no requirement under the federal law that sexually explicit conduct depicted in child pornography show a child engaging in sexual activity. A nude picture of a minor could result in a charge of possession or distribution of child pornography if it is sexually suggestive.

Possession of Child Porn in VA

A first conviction for possession of child pornography is a Class 6 felony under Virginia law. That class of felony is punishable by up to five years in prison, or less than 12 months at the discretion of a judge or jury, and a $2,500 maximum fine. Possession has to be knowing under Virginia Code §18.2-374.1:1.

A second or subsequent conviction is a Class 5 felony punishable by up to 10 years in prison and a maximum $2,500 fine.

When the material possessed was mailed, shipped, or transported across state lines or international borders, the offense may be charged in federal court. Federal law at 18 U.S.C. §2252 makes it a crime to knowingly possess or knowingly access with the intent to view one or more books, magazines, videos, or other materials containing visual depiction of a minor engaged in sexual conduct. The federal penalty is up to 10 years in prison unless the minor depicted is younger than 12, in which case the maximum sentence increases to 20 years. When you have a prior conviction under federal or state laws related to child sex abuse or child pornography, the maximum sentence also is increased to 20 years.

The federal statute allows a defense to a possession charge:

  • When you possess fewer than three of the prohibited pornographic materials
  • You didn’t show the materials to anyone other than law enforcement
  • Took reasonable steps to destroy the materials or reported the existence of the materials to law enforcement and gave investigators access to the materials

Distribution

Virginia Code §18.2-374.1:1 makes it an unclassified felony essentially to knowingly distribute child pornography in any way, whether it’s sold or given away. Asking or telling another person to distribute child pornography is a similar felony. The penalty set forth in the statute is up to 20 years in prison. A second or subsequent offense carries the same sentence, but with the requirement that a minimum of five years actually be served.

Operating a website to facilitate payment for access to child pornography is a Class 4 felony under Virginia Code §18.2-374.1:1, punishable by up to 10 years in prison and a fine of up to $100,000.

The federal crimes of distribution or sale of child pornography are described in 18 U.S.C. §2252. The federal statute is invoked when the distribution or sale involves mailing, shipping, or otherwise transporting or transmitting the materials across state lines or federal borders.

The federal penalty for distribution or sale of child pornography can carry up to 20 years in prison. When there is a prior conviction under state or federal law, there are mandatory minimums that begin at 10 years and increase to 40 years in prison.

Sexting Charges in Virginia

A recent social media trend is catching some young people off guard when they use their smartphones to text nude or explicit photos of themselves to friends, dates, or significant others. A report by the Virginia Attorney General’s Office said 51 percent of girls say they feel pressured by boys to text or post to social media sexually suggestive pictures of themselves compared to 18 percent of boys who felt pressured to do so by girls. Roughly equal amounts — 23 percent of girls and 24 percent of boys — said they felt pressured by peers to send or post suggestive content.

Because of the way child pornography laws are written, if a teenager takes a sexually explicit photo of him or herself, or of another teen, and then transmits it using a cell phone or posts it to social media, that teenager can actually be charged with producing, possessing, or distributing child pornography. Knowingly taking a sexually explicit photo of an identifiable minor, who was a minor at the time the picture was snapped is all it takes.

So a teenager who thought he or she was doing something private and intimate can end up facing a very serious felony charge that can lead to years in prison, thousands of dollars in fines, and being required to register as a sex offender. And any teenager who receives that picture and texts it to another friend or shares it on Facebook or Twitter can likewise be charged with distribution of child pornography.

A felony conviction can throw that teenager’s entire future into jeopardy. Most colleges screen ask about criminal convictions on applications, and a felony conviction could be grounds to deny admission. A felony conviction also could affect the teen’s ability to get a job or rent an apartment later on, since even juvenile felony convictions can stay on a person’s public record in Virginia. When a teen is charged with a child pornography offense because of sexting, representation by an experienced criminal defense attorney may be crucial to protecting that teen’s future.

Defenses Against Your Sex Crime Charge

To convict you of possession or distribution of child pornography, a prosecutor has to prove a few things beyond a reasonable doubt:

  • The materials in question are sexually explicit visual materials as defined by the law
  • The materials depict a minor
  • You knew what the materials were and that they were in your possession, or that you were giving or selling them to someone else

Sexually Explicit Visual Materials

What constitutes sexually explicit visual materials can be something of a gray area. The U.S. Supreme Court worked for decades to pin down what the word “pornography” means, and when depictions of sex or sexual activity might be OK or might cross the line into pornography. The issue remains subjective, with Justice Potter Stewart famously saying in his 1964 concurring opinion in Jacobellis V. Ohio, “I know it when I see it.”

The law is more stringent when it comes to visual materials depicting minors in sexually explicit ways than it is for materials showing adults, but there still may be room for argument about whether a given depiction actually is sexually explicit. A nude photograph of a child in and of itself may not rise to the level of child pornography. How often have you seen a naked baby bottom in a diaper commercial on TV? Can a parent take a photograph of his or her own toddler taking a bath or running naked through the lawn sprinklers in the heat of summer? Virginia courts have said the depiction has to be lewd, or focused on the genitals, or show sexual activity.

If it’s questionable whether the material is sexually explicit, then a skilled sex crimes defense attorney may be able to argue that the charge should be reduced or dismissed.

Depiction of a Minor

The person depicted in the materials must be an actual minor, or believed to be a minor, for a conviction of possession or distribution of child pornography. Virginia law includes a presumption that the person involved is under 18 if depicted as a minor in the materials, but if there’s evidence that the person was in fact 18 or older, a defense may exist to the charge.

Knowing

A key element of charges related to child pornography is that you had to have knowledge that you possessed or were producing child pornography, or the intent to get a child to be the subject of sexually explicit materials. What if you just clicked on the wrong link by accident when performing an innocuous Google search? Or you ended up with a piece of malware that downloaded a file to your hard drive without you ever knowing? When possession is accidental or unknowing, your criminal defense attorney may be able to put on a successful defense to the charge.

Computer Files

When the case involves images or videos on your computer, the prosecutor has to establish a connection between you and the computer, and that you knew how to access the files. If multiple people had access to the computer, an experienced criminal defense attorney may be able to establish reasonable doubt sufficient to convince a judge or jury to dismiss your case, reduce your charge, or lessen your penalties.

How the Roanoke Child Pornography Attorneys in Virginia Can Help You

If you’ve been charged with a child pornography offense in Virginia, the experienced criminal defense attorneys at Copenhaver, Ellett & Derrico can help evaluate the details of your case and your options. For an appointment at our Roanoke office, call our local number at .