What is the legal definition of “child pornography”?
The crime of “Possession of Depictions of Minors Engaged in Sexually Explicit Conduct” is:
“A person commits the crime of possession of depictions of a minor engaged in sexually explicit conduct when he or she knowing possesses a visual or printed matter depicting a minor engaged in sexually explicit conduct.”
Are photos of my children bathing considered “child pornography”?
No! The minor has to be engaged in “sexually explicit conduct.”
What is “sexually explicit conduct”?
It is a statutorily defined term pursuant to RCW 9.68A.011: the depiction must involve (a) sexual intercourse, oral, genital or anal whether of the same or opposite sex; or (b) penetration of the vagina or rectum by an object; or (c) masturbation; (d) sadomasochistic abuse; or (e ) defecation or urination for sexual stimulation.
What is the punishment for conviction of “possession of child pornography”?
A conviction of “Possession 1”, which is a Class B Felony, carries a maximum ten year prison sentence and a $20,000 fine. Under the Washington Sentencing Reform Act, the presumptive sentencing range for a first time offender is prison: twelve months and a day up to fourteen months.
Is “Possession 2” a less serious offense?
Yes. It is a Class C felony, with a maximum possible punishment of five years in prison and a $10,000 fine. The presumptive sentencing range for a first offense is 3 – 9 months.
What qualifies as “Possession 2”?
RCW 9.68A.011(f)(9) defines prohibited images in this category of crime as (f) “depiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor. For the purpose of sexual stimulation of the viewer. It is not necessary that the minor know that he or she is participating in the described conduct or any aspect of it (g) or touching of a person’s clothed or unclothed genitals, pubic area, buttocks or breast area for the sexual stimulation of the viewer.”
Can someone unwittingly be violating “Possession 1” or “Possession 2”?
For “Posession 1”, no: it is not credible that persons could claim lack of intent or knowledge if they possessed any images falling in the category of (a) – (e). However, the answer is “yes” involving “Possession 2”. For example, under-aged models have gotten away with posing for magazines or internet sites, claiming to be of legal age. A minor claiming to be 18, or nude children in the presence adults in any environment, are areas of extreme risk for someone possessing such images. Obvious voyeurism shots (showers, bathrooms) also run afoul of the statute.
How is “minor” defined for “Possession 1” or “Possession 2”?
“Minor” means any person under the age of 18.
Is possession of child pornography a sex offender registration offense, if convicted?
Yes. “Possession 1” requires 15 years of sex offender registration. “Possession 2” requires 10 years of sex offender registration.
What should I do if I’ve been arrested for, or charged with, “possession of child pornography”?
The most important thing to remember if you have been contacted by law enforcement for questioning is DO NOT GIVE A STATEMENT OF ANY KIND. Politely decline to answer ANY questions. If you have been contacted by law enforcement to give a statement, let them know that you will be in contact with your attorney and do not wish to provide any information at this time. If you have been arrested, immediately request to speak with your attorney. If you have not retained counsel at the time of your arrest, you may ask to speak with a public defender.
As soon as you have been contacted by law enforcement or released after an arrest, you need to consult with an experienced criminal defense attorney. DO NOT WAIT. Many people wait until they have been charged with a crime. Your best opportunity to have the case dismissed outright will have come and gone if charges are already filed. There is much that can be done to put you in a better position while a case is being investigated and is in “pre-charge” status.
Have you been arrested, or are under investigation, for possession of child pornography? Call Jan Olson for help. Jan is a criminal defense attorney specializing in sex offense cases.
Call 206-682-0565 to discuss your case.
