Virginia Child Pornography Lawyer

Virginia Code § 18.2-374.1 defines child pornography as any sexually explicit material that shows a minor in state of nudity or engaged in sexual conduct.

The phrase “sexually explicit material” is generally defined as any image or video that depicts sexual conduct, sexual excitement, sadomasochistic abuse, lewd exhibition of nudity, or bestiality.

One area of concern in child pornography cases is when images or videos are found in a computer’s temporary internet cache. Virginia law specifically addresses this issue and considers “sexually explicit material” to include situations where “three or more images or streaming videos are present” in the temporary internet cache.

Virginia also requires that the minor be identifiable. The term “identifiable minor” is generally described as a person who was a minor at the time the image or video was created or modified. It also includes a person whose image as a minor was used in creating or modifying the image or video and is recognizable by their face or likeness (i.e., a distinguishing characteristic such as a birthmark).

Virginia charges child pornography offenses in three separate ways: possession, distribution, and production. Each offense carries differently potential penalties.

Possession of Child Pornography in Virginia

Possession of child pornography is illegal under Virginia Code § 18.2-374.1:1. The statute specifically states that “any person who knowingly possesses child pornography is guilty of a Class 6 felony.” A Class 6 felony carries up to 5 years of prison, but Virginia law counts any additional image as a Class 5 felony which carries up to 10 years in prison. Because the vast majority of cases involve more than a single image, the potential penalties can add up quickly.

Distribution of Child Pornography in Virginia

Distribution of child pornography is made illegal under § 18.2-374.1:1(C). The law essentially outlaws two different types of acts:

• First, it is illegal for any person to knowingly reproduce, display, purchase, or to possesses with the intent to sell or distribute child pornography.
• Second, it is illegal for any person to command or attempt to persuade another person send any child pornography to him in order to gain entry into a group engaged in sharing child pornography.

Production of Child Pornography in Virginia

The crime of production is found at § 18.2-374.1 and outlaws anyone from enticing or soliciting a minor (under 18 years old) with the intent of inducing or forcing the minor to perform in or be the subject of child pornography. This law carries harsh sentencing penalties.

If the minor is less than 15 years old, a person will receive a sentence between 5 and 30 years in prison. If the person is 7 years older or more than the minor, the 5 years is a mandatory minimum. For a second offense where the person is at least 7 years older than the minor, the mandatory minimum increases to 15 years in prison and the maximum sentence increases to 40 years.

For cases where the minor is between 15 and 17 years old, the law calls for a sentence of 1 to 20 years in prison. But if the person is more than 7 years older than the minor, the penalties increase to 3 to 20 years in prison, with the 3 years being a mandatory minimum. For a subsequent offense, the mandatory minimum increases to 10 years and the maximum sentence increases to 40 years.

Possession of a single image of child pornography is a Class 6 felony in Virginia, which carries up to 5 years in prison. Virginia law counts any additional image as a Class 5 felony which carries up to 10 years in prison.Because the vast majority of cases involve more than a single image, the potential penalties can add up quickly.

A person convicted of distribution of child pornography is subject to a sentence of 5 to 20 years in prison, and a second violation carries 5 to 20 years, with the 5 years being a mandatory minimum. The mandatory minimum must also be consecutive (in addition to) with any other sentence.

Most Virginia child pornography investigations begin with a cybertip from an internet service provider (e.g., AT&T or Comcast) or internet-related company (e.g., DropBox, Bing, Google). When these companies detect possible child pornography, they are required by law to send a report to the National Center for Missing and Exploited Children (“NCMEC”). NCMEC will then make its own report before forwarding it to law enforcement.

There are legal and factual defenses to child pornography charges in Virginia. Legal defenses attack the legality of the case (e.g., arguing that the police violated your constitutional rights due to an unlawful search). Factual defenses seek to show that there was no intent to access child pornography, that the images are not of minors, or that someone else is responsible for the images.

Legal Defenses

In a child pornography case, it is imperative to file pretrial motions attacking the legality of the Commonwealth’s case. The vast majority of child pornography cases in Virginia involve law enforcement obtaining a search warrant in order to search someone’s residence and to seize their computers, hard drives, and cell phones. These search warrants must comply with the relevant laws, including the Fourth Amendment to the United States Constitution.

In order to obtain a search warrant from a judge, a law enforcement officer is required to prepare an affidavit which explains why there is probable cause to believe that evidence of a crime (i.e., images or videos of child pornography) are located at a particular residence or on a particular electronic device.

A good criminal defense lawyer will review the affidavit supporting the search warrant to determine if there was probable cause for the warrant to issue. Issues like staleness, lack of a nexus, failure to allege a crime, or alleging the wrong crime can render a search warrant invalid. A criminal defense lawyer will also look to see if the law enforcement officer lied in the affidavit or failed to include facts which would cast doubt on probable cause.

There are also many other factors that could render a search warrant invalid (i.e., the judge was without jurisdiction to issue the warrant, the warrant failed to properly specify the place to be searched or the things to be searched for, the warrant listed the wrong address, etc).

If your lawyer finds an issue with the warrant, he can file a motion with the Court to suppress the evidence. If the motion to suppress is granted by the judge, the prosecution will typically have to dismiss the entire case. If there was no probable cause or if the officer lied, a lawyer can file a motion in court asking the judge to suppress the evidence. In some cases, an experienced attorney can help get the case dismissed if the evidence or investigation was flawed, protecting you from unjust criminal charges and potentially securing a favorable outcome in your case. 

Your lawyer will also look to see if you made any statements to law enforcement. Normally, law enforcement will attempt to interview the residents of a home when it executes the search warrant. The prosecution will then use these statements at trial to establish guilt. Law enforcement, however, often runs afoul of Miranda v. Arizona.

Miranda is a case that requires law enforcement to make you aware of certain rights before questioning (including the right to a lawyer and the right to remain silent). If your lawyer believes that your statements were obtained in violation of Miranda, he can file a motion asking the court to suppress the statements. In some cases, the only evidence tying a person to the evidence may be their interview with law enforcement. In those instances, the prosecution will likely have to dismiss the case entirely if the judge suppresses the statements.

Factual Defenses

Your lawyer will also look for factual defenses to the charges. In most cases, this involves a deep dive into the electronic devices that were seized by law enforcement. This requires the assistance of an experienced computer forensics expert.

When law enforcement searches a computer or cell phone, they are simply looking for illegal videos and images along with search terms indicative of child pornography. To accomplish this, law enforcement typically uses software such as EnCase or Cellebrite. These searches, however, only tell part of the story, and they often miss critical facts which can establish complete legal defenses.

An independent computer forensic expert’s review of a computer or cell phone is focused on finding potential defenses and casting doubt on the prosecution’s expert’s findings. A defense expert can help to establish the following defenses:

• Deleted, cache, or temporary internet files
• Someone else downloaded the image or video
• The computer is infected with a virus or malware
• No actual image or video
• The person in the image is not a minor
• Lack of venue
• Did not know distribution was occurring

Another common defense that an expert can help with is when the download was unintentional. Many child pornography cases involve P2P programs such as BitTorrent, Ares, or Kazaa. These programs are designed so that a user may accidentally download child pornography when that was never the user’s intention. While law enforcement is only concerned with whether child pornography is somewhere on the machine, a defense expert can determine if the download was unintentional by looking at the original file name, whether the file was ever opened, and whether the user tried to delete the file.

Even if a case does not proceed to trial, defense experts can be incredibly useful for negotiating a deal with the prosecution or seeking a more lenient sentence from the judge. The prosecution will often misstate the number of images, the location of the images, the length of video files, and how long the alleged conduct was going on. A defense expert can set the record straight and show that the facts are not nearly as bad as the prosecution portrays, particularly when addressing technical questions.

Yes, hiring an independent computer forensics expert is often necessary to combat the prosecution’s expert in a Virginia child pornography case.

In every child porn case, the prosecution will rely on a computer forensics expert that works for law enforcement. By hiring an independent expert, your lawyer can determine if the prosecution’s expert made inaccurate findings or used unreliable methods. An independent expert can also help build a defense to the charges (e.g., there was no intent to view child pornography).

In Virginia, a person typically cannot be convicted of child pornography if the images were found in the cache files or in unallocated space. The exception to this rule occurs when the user was able to access the files (usually with specialized software) or otherwise had knowledge that the files were on his computer.

In Kovach v. Commonwealth, 2016 WL 7094215, at *4 (Va. Ct. App. Dec. 6, 2016), the Virginia Court of Appeals found that a defendant’s conviction must be reversed where images were stored in the thumb cache files because there was no evidence that the defendant could access the files.

Similarly, in Kobman v. Commonwealth, 65 Va. App. 304, 308 (2015), the Court of Appeals reversed the defendant’s conviction for images stored in the unallocated space because there was no evidence that the defendant was aware of, or exercised dominion and control over the images.

Yes, a psychological expert is almost always necessary in a child pornography case to show that you had no sexual interest in minors and that you are not a danger to the community.

It often makes sense for an individual accused of a child pornography offense to undergo a psychosexual evaluation. This can be helpful for a couple of reasons. First, the psychosexual evaluation may show that the person has no sexual interest in children, thereby helping to establish his innocence. Such testimony, in conjunction with testimony from a computer forensic expert, can be powerful evidence.

Second, a psychological expert can testify that a person is either not a risk to the community, or in the alternative, that he is a low risk to the community. Such testimony is often necessary in order to work out a deal with prosecutors to a reduced charge or to receive a more lenient sentence.

In addition to motions seeking to dismiss the case for constitutional violations, your lawyer may file a number of motions seeking to limit the evidence the Commonwealth can introduce at trial. This includes motions to exclude the Commonwealth’s forensic expert, motions to exclude prior bad acts, and motions to limit the number of images.

• Challenging the prosecution’s expert. The prosecution’s forensic expert is usually critical to the prosecution’s case. Prior to trial, the prosecution will provide the defense with an expert report detailing their findings and opinions. A good defense lawyer will file a motion arguing that the expert’s testimony should be excluded from trial because the expert is not qualified or because the expert’s opinions are not reliable.
• Limiting the testimony of the prosecution’s expert. The prosecution’s expert is likely skilled in testifying and will attempt to testify beyond their area of expertise. A motion seeking to limit their testimony to specific facts is often necessary to prevent them from offering unqualified expert testimony.
• Limiting the number of images or videos. The prosecution will likely attempt to introduce numerous images into evidence. The cumulative effect of numerous images can be inflammatory and prejudicial in the eyes of the jury. A defense lawyer should file a motion seeking to limit the number of images to just a handful.
• Excluding prior bad acts. The prosecution will attempt to introduce any prior bad act which may help establish that he knowingly possessed the child pornography at issue. This may come in many forms, including a prior conviction or testimony from a former girlfriend. A defense lawyer should file a motion prior to trial arguing that such evidence is irrelevant and prejudicial and should therefore be kept out of the trial. To ensure the best possible defense in cases involving the internet, it is crucial to consult a Internet Sex Crime Lawyer, who can navigate the complexities of digital evidence and protect the defendant’s rights.

Yes, Virginia law allows individuals with autism who are facing criminal charges to receive a deferred disposition, including child pornography charges. Please visit our Autism Criminal Defense page to learn more about how we defend our clients with autism.

Under Virginia Code 19.2-303.6, a judge can put a person with autism spectrum disorder on probation, and the case can eventually be dismissed altogether. To do so, the judge needs to find that the illegal conduct was caused by (or had a direct and substantial relationship) to the individual’s disorder or disability. In order to take advantage of this law, a psychologist or psychiatrist will normally have to testify that the individual has been diagnosed with autism or another qualifying disorder.

Our firm has been extraordinarily successful in getting cases dismissed for our clients with autism. You can read about one of these cases here.

Yes, under Virginia Code § 19.2-56, Virginia has a number of special rules that law enforcement must follow for a search warrant to be valid. This includes the following:

• The searching officer must be recognizable and identifiable as a uniformed law-enforcement officer and must state his authority and purpose prior to executing the warrant.
• Officers must give a copy of the search warrant to the owner of the residence.
• The search must take place between 8am and 5pm unless a judge finds good cause to allow entry before or after these times.

Yes, character witnesses can be critical in defending against child pornography charges in Virginia.

Your lawyer should line up a number of character witnesses who can testify that the defendant has no affinity towards children. These witnesses can include the defendant’s wife, former girlfriends, children, or any witness who can provide insight into the matter.

Our Virginia criminal defense lawyers fully understand how to defend against child pornography charges. We have won dismissals, obtained reductions, and received sentences of straight probation for individuals charged with child pornography offenses across Virginia.

If you or someone you know is facing a child pornography charge in Virginia, contact us now for immediate help.

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