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Possession of Child Porn Aggressive Defense Attorneys in Albuquerque

Criminal Defense Attorneys Defending Clients Charged with Possession of Child Porn in New Mexico

The possession of child pornography is a very serious issue in the state of New Mexico. Accusations related to the manufacturing, possession, or distribution of child pornography affect not only the victim, but also the victim’s family and friends, the offender, and the offender’s family and friends. The wounds go deep and take many years to heal. If you or someone you know has been accused of child pornography possession in Albuquerque, New Mexico, don’t delay in reaching out to a defense attorney. The consequences can be severe and the sooner you get legal help, the better off you will be.

What is Child Pornography?

Child pornography is defined as any visual depiction involving a minor engaging in sexually explicit conduct. The key to this definition lies in understanding the terms ‘minor’ and ‘sexually explicit.’ The courts define a minor as anyone under the age of eighteen, while sexually explicit refers to actual or simulated sexual intercourse, including oral, anal, sadistic abuse, masturbation, lewd exhibition of genitals, or bestiality.

Prohibited Acts

Everything related to child pornography is illegal in Albuquerque, New Mexico and the surrounding areas. While producing child pornography brings the stiffest penalty, it is also illegal to view, possess, transport, or distribute.

Possession of Child Pornography

Federal law strictly prohibits the possession of child pornography in any manner. While possession does not technically carry a mandatory minimum sentence, it is not uncommon to receive jail time or heavy probation. The complete laws and regulations related to possession of child pornography can be found in 18 U.S.C. 2252.

Source of the Law

The possession of child pornography is deemed illegal under federal law 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children. It is also outlawed under the Children’s Internet Protection Act and Child Online Protection Act. Child pornographers can be prosecuted by any number of agencies, including the FBI, Department of Justice, U.S. Customs, U.S. Postal Inspection Service, U.S. Attorney General, local prosecutors, and local law enforcement.

Exceptions to the Possession of Child Pornography

While the possession of child pornography is dealt with very harshly, there are some exceptions to the law. If it can be proven in the court of law that the depiction has serious scientific, political, literary, or artistic value, it may be exempted from related child pornography laws. In order to be exempt, the court usually looks at the case of U.S. v. Dost to determine whether the image meets the criteria of pornography. The Dost Test contains six criteria, not all of which must be present. 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)

What is “possession” in New Mexico?

To “possess” something, whether it is child pornography or drugs:

  • You must have physical control of it; and
  • You must have the knowledge or intention of having it.

Refusing to look at something that you are paid to transport so that you “don’t know what it is” is not a defense if you reasonably should have known that the item was illegal.

What are some defenses against child porn charges?

Possible defenses include:

  • You accidentally downloaded obscene material or visited a child porn website.
  • You were entrapped (a law enforcement officer baited you into committing a crime that you weren’t inclined to commit).
  • You downloaded material without realizing that it was obscene.
  • The evidence against you was seized illegally in violation of the Fourth Amendment.

What are the federal “mandatory minimums”?

Federal mandatory minimums are minimum prison sentences that federal judges are required to impose if you are convicted. The minimum sentence for a second offense of possession of child pornography, for example, is 10 years, while the minimum sentence is 15 years for distribution of child pornography. These minimums do not apply to convictions under state law.

What is the federal “statutory safety valve”?

The “statutory safety valve” allows a defendant, convicted of a crime for which a mandatory minimum sentence applies, can be sentenced to less than the minimum if:

  • The offense was nonviolent;
  • The defendant played no significant leadership role in the offense (as an organizer, for example); and
  • The defendant has a clean or nearly clean criminal record.

The age of consent in New Mexico is 17. Does that mean that it is legal to view sexual image of a 17-year-old in New Mexico?

No. Anyone under 18 is considered a “child” for the purpose of child porn offenses. The age of consent is relevant only to a statutory rape charge.  If you find this inconsistency a bit strange, you are not the only one who thinks so.

Is consent of the parents a defense against child pornography charges?

No. The consent of the parents is irrelevant, just as the consent of the child is irrelevant. A parent can be charged with a crime for allowing their child to participate in child pornography.

What does it mean to “possess” child pornography on my computer?

You can be charged with possession of child pornography if you view an image of a minor engaged in sexual activity, or if you view an image, even if not overtly sexual, that displays a minor’s genitals or buttocks. In fact, you can be charged with saving such images on your computer even if you didn’t actually view them.

What if I accidentally received child pornography on my computer – through cookies, for instance?

Although this is certainly a dangerous situation, courts do realize that it is possible nowadays to download child pornography without even realizing it exists, or without being aware of its content. If this happens to you and you are questioned by police, contact our office immediately, so that we can investigate and start working on a defense.

Contact Us

If you have been accused of possession of child pornography in Albuquerque, New Mexico, please contact the New Mexico Criminal Law Offices today. We have been serving the local community for more than fifteen years and would be happy to help in your defense. Our firm consists of two attorneys committed to one goal: clearing your name. Each case is important to us, and we will work hard to help you fight the specific charges you are facing. Call us at 505-200-2982 for a free initial consultation.