Child Pornography Defense: Legal Considerations and Building a Vigorous Defense

By Brock Benjamin
Founding Attorney

Child pornography charges aren’t treated lightly in Texas, New Mexico, or on the federal level. In fact, they are some of the most serious and emotionally charged offenses one can face, and are prosecuted mercilessly on both a state and federal level. Being accused of possessing, distributing, or producing such material can have a severe impact not only legally, but socially and personally. 

Because of the emotional reaction many have to such crimes, reaching a favorable outcome once the case reaches a jury is not only an uphill battle, but a near impossibility without the assistance of an expert criminal defense attorney. It’s crucial to mount a vigorous defense, especially before the charges reach the trial stage of the criminal justice process. Fortunately, there are many strategies that an experienced attorney can help you utilize to build the strongest possible defense.

If you or a loved one are facing charges relating to child pornography on a state or federal level, it is imperative you contact an experienced Texas and New Mexico child pornography defense attorney today. You need a skilled advocate who knows the law and who will fight tirelessly for the best possible outcome. The longer you wait, the more difficult it becomes to mitigate the impact of these charges. Let us protect you, your future, your reputation, and your freedom. We are ready to start fighting for you today.

Child Pornography Law in Texas, New Mexico, and Federally

Both Texas and New Mexico, along with the federal government, have uncompromising laws in place aimed to protect children from the exploitation of child pornography. The penalties that the accused can face are incredibly harsh and not only can – but most assuredly will – follow the accused for a lifetime if convicted. These charges can be brought at the state or federal level, and can carry severe penalties including significant periods of incarceration, fines, and mandatory registration as a sex offender.

Texas, New Mexico, and federal law all have comprehensive legal frameworks addressing child pornography charges. Texas child pornography law is established under § 43.26 of the Texas Penal Code and New Mexico child pornography law is established through statutes, both addressing the possession, distribution, and production of child pornography. Additionally, federal law addresses child pornography and prosecutors can bring federal charges under the PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act and the Child Pornography Protection Act.

The Specific Child Pornography ChargeFederal LawTexas LawNew Mexico Law
PossessionUp to 10 years in prison for material depicting minors aged 12 and older and up to 20 years in prison for material depicting minors under 12.Two to 10 years in prison. Up to 18 months in prison.
Possession with Intent to DistributeFive to 20 years in prison.Two to 20 years in prison.Three to 15 years in prison.
Distribution or Production (or attempted)15 to 30 years in prison.Five to 99 years in prison or life imprisonment.Three to 15 years in prison.
FinesUp to $250,000Up to $10,000Up to $15,000

The penalties in the above chart may be enhanced depending on the age of the child involved in the material, where the offense occurred, and the offender’s prior criminal record. Further, they can be charged per image. In today’s world, a simple inadvertent download can contain thousands of images. Even more harsh is videos are usually charged based on “how long” they are.

These charges cannot be expunged if a conviction is obtained and will almost always leave the accused with a long period on the sex offender registry, if not a lifetime. This not only presents legal challenges, but poses significant social and practical challenges. The sex offender registry is public, meaning that friends, family, employers, landlords, and the surrounding community can easily become aware of these charges, and occasionally law enforcement may even directly notify neighbors and the greater community of the offender’s status on the registry. 

Given how easily this information is accessed, it will most certainly come up on any routine background check, and landlords and potential employers may be hesitant to rent to or hire a registered sex offender. A registered sex offender will have to contend with additional restrictions on where they can reside, making it difficult to secure housing and government housing assistance. A registry can also present travel restrictions and can negatively impact any current or future child custody considerations.

More importantly, is experience working with forensic computer experts and knowledge of how the FBI’s CAST team operates. Additionally, and closely associated with a pornography allegation can be forensic child experts. All of these take specific specialized knowledge and experience to deal with.

How The Benjamin Law Firm Can Help You Mount a Rigorous Defense 

While child pornography penalties can be incredibly harsh, there are ways to mitigate or altogether eliminate these charges with the help of an experienced child pornography defense attorney

  1. Utilizing the presumption of innocence. In every criminal case, the accused is presumed innocent until proven guilty. The prosecutor’s duty is to prove beyond a reasonable doubt that the accused committed the crime, but the defense doesn’t have to prove that the accused didn’t do it. For child pornography cases, this goes a step further. The prosecutor can’t convict the accused for viewing the material. The prosecutor must show that the accused took “affirmative action” to save or possess this material. The defense merely has to show that the prosecutor doesn’t have proof beyond a reasonable doubt. A vigorous defense involves poking holes in the prosecution’s case, highlighting gaps in evidence, and showcasing inconsistencies, while presenting their own evidence to the contrary. 
  1. Proving a violation of the accused’s constitutional rights. Showing that the accused’s constitutional rights were violated can lead to the exclusion of evidence and can significantly weaken, if not altogether destroy, the prosecution’s case. If there was an illegal search or an illegal arrest, wherein law enforcement violated the accused’s constitutional rights, any evidence obtained as a result of that violation cannot be presented, regardless of innocence or guilt. If the police lied on a warrant or if the warrant didn’t meet all of the necessary requirements, then whatever was found due to that warrant will be excluded. Similarly, if the police had a valid warrant but their search exceeded the scope of that warrant (such as looking into devices or closed containers that weren’t specifically named in the warrant), any evidence found is inadmissible in a court of law. Similarly, if the accused was taken into custody but wasn’t read their Miranda rights or was denied an attorney, any statement given or evidence obtained must be suppressed. 
  1. Challenging the evidence procedurally. A skilled attorney can examine the chain of custody of any evidence and how it was handled. If there was an issue with chain of custody or if evidence was improperly handled, it may not be admissible in a court of law, especially if there was an opportunity for the evidence to be tampered with. These cases tend to rely heavily on evidence collected from electronic devices, so if there was any issue with how the evidence was collected, its authenticity, or its accuracy, the evidence may be excluded.
  1. Challenging the prosecution’s age verification. Child pornography must depict naked minors or sexually explicit situations involving minors. A compelling strategy for a vigorous defense is to challenge whatever methods the prosecution used to “prove” that the content depicted a minor. 
  1. Demonstrating Accidental or Unintentional Possession. In order to secure a conviction for a child pornography offense, the prosecution must show that the defendant knowingly possessed, distributed, or produced this material. However, there are many cases in which accused parties may come into such material accidentally or without that critical knowing intent. Showing that the accused was unaware that they possessed such content, such as obtaining it through malware, a virus, spam, or device manipulation, or showing that the device which contained the content was shared with other individuals or existed on an unsecured or shared network where there are other individuals who could be culpable for the content is an incredibly strong defense in child pornography cases. When the material is found on a device that was obtained pre-owned or secondhand, this opens a door for arguing that the material existed on the device before it was purchased or otherwise obtained. A computer forensics expert witness can be a huge asset in mounting this defense, as they can often determine when and from where the content was downloaded, and even the digital footprint of the individual who downloaded it, indicating that it wasn’t possible for the accused to have knowingly and intentionally obtained child pornography.
  1. Turning to affirmative defenses. An affirmative defense involves admitting guilt, but providing a legal justification for the conduct. While admitting guilt may not seem like a favorable strategy, depending on the unique circumstances at hand, an affirmative defense can lead to an acquittal. Some affirmative defenses include entrapment (showing that the accused was coerced, tricked, or forced to commit the offense), showing that the child depicted in the material was the spouse of the accused, that the material had a bona fide purpose (educational, medical, religious, scientific, phycological/psychiatric, judicial, law enforcement, or legislative), or that the defendant was no more than two years older than the child depicted in the material. Entrapment can also occur at the hands of law enforcement, especially when police run a child porn sting operation where law enforcement induce individuals to purchase material which wasn’t clearly child pornography or wasn’t labeled as child pornography. 
  1. Establishing a Psychological Addiction. Addiction is seen as a disease under the law. Using an expert witness to show that the accused had a bona fide addiction can help minimize the accused’s potential sentence. While this defense won’t lead to an acquittal, it can minimize the impact of any subsequent conviction by involving a treatment program in place of prison time for those suffering from a legitimate addition who demonstrate a desire to seek help and reform their behavior.

Experienced El Paso & New Mexico Child Pornography Defense Attorney

Child pornography charges can result in extremely harsh penalties, and the impact of such charges very well may follow the offender for a lifetime. If you or a loved one are facing such charges, trust a criminal defense law firm backed by a true expert in the field, with experience defending against child pornography charges. The Benjamin Law Firm will fight relentlessly for the best possible outcome, guiding you through the process from day one.

El Paso’s Benjamin Law Firm, serves clients across Texas and New Mexico, with decades of experience advocating for clients like you. We provide robust and comprehensive criminal defense services, along with civil litigation and aviation law

Our team is led by Brock Morgan Benjamin, one of just a few attorneys who has extensive experience in criminal law. While many lawyers boast their exposure to criminal law, few can say they specialize in it like Attorney Benjamin, as he is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Not only an expert in the field, but Attorney Benjamin was once a prosecutor himself, giving him special insight into the tactics and strategies that prosecutors use to secure convictions. This gives our clients a leg up, as we know how to build and present an especially effective and rigorous defense.

Contact us today or call (915)-221-7462 so we can help you secure the best possible outcome. ¡También hablamos español!

About the Author
Brock Benjamin is board-certified in Criminal Law by the Texas Board of Legal Specialization.  His practice is primarily state and federal criminal law and appeals.Brock 

Posted in: Criminal Defense