David Benowitz On Child Pornography

DC child pornography lawyer David Benowitz answers questions about federal child pornography charges.

What are some situations where people are charged with child pornography possession?

Answer: The gray area with that charge, which I see a lot of, is when people on file-sharing sites are, essentially, looking at someone else’s hard drive. And it is very technical. If you open up a file on that site, or someone can go in and look at your hard drive, you may be technically possessing child pornography if you open a file without downloading it.

So, that is a problem. Now, are there ever instances where people do not realize that what they may be doing is a crime? What happens sometimes, I have handled cases where people start chatting online and they think it is sort of fantasy play or role playing. They do not realize that it is a crime to do that, and it becomes a very difficult situation when you encounter that situation.

I have also represented people who are substance abusers and they get in a situation online where someone, where an undercover officer will say, “Hey, do you want to come and use methamphetamine (which is highly addictive) with me?” And then, the undercover officer will throw in, “Oh, I have a child.”

All the addict is hearing is, “I’ve got drugs.” And they are willing to pay whatever they have to pay to get the drugs. Then you get in these situations where the client is saying, “Look, I did not really care that the guy was saying there was a kid. I knew there was an 8-ball of meth there. And that is all I was concerned about.”

So, there are many questionable law enforcement tactics that are used in those cases. There is also some technical issues that people don’t know about that can really expose them to a lot of problems.

How does law enforcement generally approach people charged with this kind of crime?

Answer: The usual scenario is, someone will be chatting online with a person that they do not realize is an undercover officer and they may end up trading images online. Or they may be chatting and get invited over for a rendezvous, and then when they show up they are arrested and their computer is searched. Sometimes, what happens is in that context, child pornography is discovered on the computer or on someone’s smartphone.

Are cases of possession of child pornography typically prosecuted in state court or federal court?

Answer: Mostly federal court. I have represented people in state court, but it is mostly federal because the penalties in federal court are much stricter. There are mandatory minimum sentences in federal court for possession of child pornography that some states have, but a lot of states do not. There is a five year mandatory minimum sentence for possession of one image of child pornography in federal court.

The collateral consequences of a conviction of possession of child pornography are numerous. First of all, you have to register as a sex offender. The level of stigma and humiliation related to that is extraordinary. The restrictions that go along with that can include prohibitions against owning a cellphone, going in many public places — for example, playgrounds, parks, walking near a school. Usually, you are required to undergo sex offender therapy. I have had clients who are on supervision between five and ten years. So, that is very difficult.

Why is it important to hire an attorney who has experience with child pornography allegations?

Answer: Because there are a lot of issues that come into play in these cases. Whether it be from the side of, “Okay, technically, what is child pornography,” or the technology side of, “Okay, is this actually downloaded or is this person actually possessing it?”
On the client side, if, in fact, there was child pornography, what was going on in the client’s life that led to that? What can be done to help the client get through this process and get on with their life?

Are there any other defense methods that attorneys can use to help fight charges of possession of child pornography?

Answer: One defense would be that we don’t know who downloaded it, depending on the computer. If it’s a computer in someone’s house, there have been cases where someone was charged and it was actually a relative who had downloaded it.

So, just because it’s on someone’s computer doesn’t mean they downloaded it. That’s a major defense in these types of cases. Then there’s also the defense, the more technical defense, of whether or not it actually constitutes child pornography. Those are the two main defenses.

How are investigations for this type of case typically conducted?

Answer: It’s typically through undercover police officers who are online and they’re in areas that they may come across what they believe to be child pornography. There are pretty sophisticated computer or programming issues involved. They’re looking for certain coding in files that leads them to believe that those files contain child pornography. And then, they’ll do a trace on that, and that enables them to get a search warrant.

Or, what they do is they’ll be undercover online and they’ll be engaged in a chat with someone and they’ll end up being traced. I’ve had situations where an officer has sent a corrupted file to a client and wanted an image of child pornography in exchange, and that’s what was sent. Then, they obtain a search warrant to search his computer. Those are the typical scenarios that you see.