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Distribution of Child Porn

Experienced Child Porn Distribution Defense Attorneys Serving all of New Mexico

In Albuquerque, New Mexico, like the rest of the United States, the government does not look lightly upon child pornography. Law enforcement agencies consider it a priority and are cracking down by levying hefty punishments for offenders. In fact, the length of federal sentencing for child pornography cases has increased by 500 percent over the past 15 years. One of the more serious offenses related to child pornography is distribution. If you have been accused of distribution of child porn, or expect you may be in the future, contact a defense attorney today.

What is Child Pornography?

Child pornography is deemed to be any visual depiction involving a minor engaging in sexually explicit conduct. Visual depictions include digital pictures, computer-generated images, video, film, photographs, and more. Under the code of the law, a minor is anyone younger than 18 years of age. Sexually explicit conduct refers to actual or simulated sexual intercourse involving anal, oral, masturbation, or sadistic abuse.

Prohibited Acts Related to Child Pornography

The production of child pornography has the harshest penalties, but it is also illegal to knowingly view, distribute, transport, or possess. Each of these violations carries different criminal penalties.

Distribution of Child Pornography

The law relating to distribution of child pornography is explicitly outlined in 18 U.S.C. 2252. If convicted, the minimum prison sentence is 5 years and child pornographers are required to register as sex offenders.

Source of the Law

It is both a federal and state crime to knowingly distribute child pornography in Albuquerque, New Mexico. The federal law prohibiting it is 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children. The Child Online Protection Act and Children’s Internet Protection Act also prohibit the distribution of child pornography. If found engaging in the distribution of child pornography, a number of agencies can prosecute, including the Department of Justice, FBI, U.S. Attorney General, U.S. Customs, U.S. Postal Inspection Service, and state and local law enforcement.

Exceptions to Distribution of Child Pornography Charges

If it can be proven that the visual depictions actually have serious artistic, scientific, political, or literary value, it may be exempted from child pornography laws. In order to exempt, the court will refer to the Dost Test from the case of U.S. v. Dost. This test has six criteria, all of which are not required to be present in order to pass. Those criteria are:

  1. Whether the focal point of the visual depiction is on the child’s genitalia or pubic area.
  2. Whether the setting of the visual depiction is sexually suggestive (i.e., in a place or pose generally associated with sexual activity).
  3. Whether the child is depicted in an unnatural pose or inappropriate attire given the age of the child.
  4. Whether the child is fully or partially clothed/nude.
  5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
  6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Frequently Asked Questions (FAQs)

How are child porn offense “sting” operations conducted?

Some of the most common “sting” operation methods are:

  • Pretending to be a seller of child porn looking for buyers.
  • Pretending to be a buyer of child porn looking for sellers.
  • Visiting chat rooms posing and encouraging the participant to share child porn images.

Can an Internet Service Provider face criminal charges if child porn is found on its system?

ISPs are subject to certain reporting obligations with respect to child porn. If an ISP “knowingly and willfully” fails to comply with its reporting obligation, criminal charges could be the result. Negligent failure to report child porn, by contrast, is not a criminal offense, although it could result in negative consequences.

I know that New Mexico’s age of consent for sexual relations is 17. Does this mean that it is legal to view sexual material featuring a 17-year-old?

No. For the purpose of child porn laws, the age of majority is 18, not 17. This means that even if consensual sexual relations with the minor are legal, you can still be criminally prosecuted for viewing obscene images of him or her.

Who will prosecute me if I am charged with a violation of both state and federal law for the same act?

Since federal law is generally more authoritative than state law, in the event that both state and federal authorities want to charge you, the state authorities must yield to the federal authorities.

What is the entrapment defense?

The entrapment defense arises when a police officer or other representative of the government persuades you to commit a crime that you were not otherwise inclined to commit, and then arrests you for it. To mount a successful entrapment defense, you must show that you were not originally inclined to commit the crime.

What should I do if I am questioned about a sex crime by a law enforcement official?

  • Exercise your right to remain silent until you have a lawyer present.
  • Do not resist a search if the officers have a warrant.
  • Contact your lawyer immediately if you receive a summons to court or are taken to the police station for questioning.

What is a grand jury?

A grand jury listens to witness testimony and examines evidence to determine whether it is appropriate to indict you for a crime. The prosecutor directs the proceedings and you have no right to present a defense – in fact, you may not even be informed of the proceedings.

How can plea bargaining be used to my advantage?

There are two main ways that plea bargaining can be used to your advantage. One is to plead guilty to a lesser charge in exchange for a guilty plea; the other is to demand immunity from prosecution (or a lesser charge) in exchange for testifying against a “bigger fish”.

Am I “innocent until proven guilty” when charged with distribution of child porn?

Theoretically yes. Unfortunately, in practice, the bias against people charges with this offense is so strong that it may take expert legal representation to overcome it.  We can help ensure that you receive a fair trial.

Contact Us

If you have been accused of distributing child pornography, please contact us today. At the New Mexico Criminal Law Offices, we have more than 15 years of experience defending people from all walks of life. Whether you are wrongly charged or duly accused, we can help you fight the legal system to make sure you receive the best decision possible. Everyone makes mistakes, and we want to help you work through them to get on with your life. Our firm consists of two lawyers with one goal: clearing your name.

Each case is unique and important to our team, and we promise to work hard on your behalf. For a free initial consultation, call our offices at 505-200-2982.