In addition to possession or distribution of child pornography, you can also face conspiracy charges for attempting to possess child pornography even if it never actually came under your possession. Read on to learn more about the elements of this offense, before calling and scheduling a consultation with a DC federal child pornography lawyer to begin building a defense.
In any conspiracy case, the basic elements of the offense are that someone has an agreement with somebody else to do something illegal. Here, it would be the agreement to possess child pornography as opposed to the actual possession of it which would be a separate charge. In order to prove this in court, however, there also needs to be what is called an overt act, which is an act that is taken in furtherance of the activity. An overt act itself does not actually have to be illegal.
For example, if two people agree to obtain child pornography in order to possess it, and then one person buys the computer. Buying a computer is not illegal, but it could be an overt act in furtherance of the illegal agreement to possess child pornography.
An attempt means that someone has essentially make a substantial effort to complete the act. Attempting to possess child pornography is a little bit more difficult to prove in a digital context. However, the prosecutor might seek to prove it by showing that someone made digital searches for or on websites known to contain child pornography, or paid for those images, even if they could not prove they ever received those images. Attempt charges for possession of child pornography are rare.
In order for it to constitute child pornography under the law, the images have to be of actual children under the age of 18. So a sculpture or a painting does not satisfy that definition of child pornography. It could be a printed photograph, a digital image or a video, but it must be of an actual child.
The most common way any type of child pornography charge happens is following an investigation. This occurs when law enforcement officers essentially patrol the internet and find evidence which they believe means someone is downloading or trading child pornography. It can also happen if a law enforcement officer works undercover and engages in a chat or conversation with someone on the internet, and the target of that investigation trades images of child pornography. Those are typically the ways that these types of charges are brought.
It is common to be charged with offenses alongside a child pornography charge. Sometimes what you will see is a charge of online child enticement (pdf), where there are conversations between the target of investigation and either an actual child, or an undercover agent who is pretending to be a child or someone who has access to a child. Additionally, sometimes you will see there were conversations about making arrangements to have sex with the child, and the target will seek to trade or provide images of child pornography. That is where a child pornography charge can often be accompanied by an additional charge.
One of the potential defenses is that other people could have access to the computer. If the computer is in a house or apartment with other people, someone else could very easily have access to that computer.
For example, if someone has access to the password for a particular computer, is there any possibility that your computer was hacked? A defense attorney will want to know that along with the location of the images. If someone else also had access to the computer for finding images on it and the images were found in a weird place, this information can be used as a defense.
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