Seattle Possession of Child Pornography Defense Attorney
In recent years, more and more people in Washington have been getting charged with possessing and/or distributing child pornography. These cases can be prosecuted in either state or federal court. At the state level, the charge is called Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct. The consequences of a conviction for an offense like this is steep, including a felony on your record, registration as a sex offender and jail/prison time. We have been fighting these case for many years and have proven strategies to defend you.
Court and Michelle developed a specialty representing those accused of sex crimes through their involvement with Dateline NBC’s To Catch A Predator show. Court was the first attorney in the country to take one of these cases to trial. Read about Court’s success with this first case here.
Common Possession of Child Pornography Questions
The charges you could be facing vary depending on whether you are charged in state or federal court.
Federal: The most common federal charges we see are Possession and or Distribution of Child Pornography under 18 USC 2252. Less common would be Production of Child Pornography under 18 USC 2251.
State: The most common charges in state court are:
- Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct
- Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct
- Viewing of Depictions of a Minor Engaged in Sexually Explicit Conduct
There are different reasons why you could be charged with dealing or distributing, so we would need to speak with you to determine why you are being charged with this.
That said, the most common reason we see is that our client is alleged to have used a file sharing protocol such as BitTorrent or UTorrent. In other words, the allegation is that you downloaded a folder of images/videos from one of these sites where others are capable of sharing and distributing images between one another. So even if you did not personally reach out to someone to share images, you can still be charged with dealing.
The difference between these two counts has to do with the content of the images or videos.
First Degree: Depictions of sexual activity, such as images/videos showing penetration, oral sex, etc.
Second Degree: Depictions of nude minors. No actual sex being depicted.
There is also a difference in the number of counts, and thus potential consequences, you could be facing for these offenses, as is discussed in the next Q&A below.
For State prosecutions, this depends on whether you have been charged with first or second degree possession.
First Degree: The “unit of prosecution” for first degree possession of depictions is per image, meaning that you can conceivably be charged with a separate count for each and every image you possessed. Given how sex crimes “triple” in scoring under Washington’s sentencing guidelines, this means that four counts of first degree possession can max you out on the sentencing grid.
From a practical standpoint, most jurisdictions in Washington State show some restraint in filing multiple counts of first degree possession, particularly for first time offenders. In other words, just because the State can charge you with multiple counts, doesn’t mean they actually will.
Second Degree: this is much more forgiving as the “unit of prosecution” is per incident. What this means is that if the police take all of your devices and then find hundreds or even thousands of images that qualify as second degree possession, you will still only be charged with a single count.
For possession of depictions, there are Four basic things that the State must prove against you in order for you to be found guilty:
- You POSSESSED the images. This may sound like a given, but there are potential defenses revolving around possession. Below are two examples:
- Someone else has access to the device or cloud service where the images were located, and you were unaware the images were on the device/cloud.
- For digital images, images can sometimes be inadvertently downloaded and then either deleted and/or stored in some unallocated cache of your computer that you haven't accessed and wouldn’t know how to access even if you wanted to.
- The images are in fact of a MINOR (under 18 years old). Some pictures leave no doubt as to this issue (pre-pubescent), while there is ample doubt with other images that law enforcement tags as depicting minors. We have had jurors agree on this point at trial.
- You KNEW the image(s) depict a minor. Even if the government and/or a juror thinks the image is of someone under 18, the state still must prove that you KNEW the person was under 18.
- Depict something that qualifies as SEXUALLY EXPLICIT CONDUCT. This is typically a non-issue as it unusual to see a charge move forward without nudity depicted and that is all that's needed to be considered sexually explicit.
There is not a one size fits all answer to this question as it can vary depending on the exact charge(s) you are convicted of and what your criminal history is, if any. The table below will give you an idea of the standard sentencing ranges for possession of depictions in the first degree State court.
|Months in Custody||12-14||15-20||21-27||26-34||31-41||36-48||46-61||57-75||67-89||77-102|
Despite these standard ranges, there can be an option for alternative sentencing options with a reduction to second degree possession. There is a lot that goes into sentencing, points, etc. Give us a call to explain fully.
If you are convicted of possessing child pornography or a similar charge, you will have to register as a sex offender. In Washington State, the period of time you will have to register varies as well, depending on the charge:
- Possession or Distribution – 15 years
- Production – 25 years
- Possession or Dealing FIRST degree – 15 Years
- Possession or Dealing SECOND degree – 10 years
- Viewing – 10 Years
In both federal and state court, possession of child pornography is a felony offense. In state court possession and dealing in both the first and second degree are class B felonies. Viewing depictions in the first degree is also a class B felony.
Viewing depictions of a minor in the second degree is a class C felony.
The only path to a misdemeanor for any of these charges would be a reduction to Attempted Viewing of a Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree. Of note, if this is combined with a deferred sentence, then your registration as a sex offender requirement in Washington State would be drastically reduced from 10 years to 2.
The federal government can typically claim jurisdiction in these matters as the vast majority of the charges stem from images found online and thus satisfy the interstate or foreign commerce requirements.
That said, there are many cases that could be charged federally that end up getting handled at the state level. Of note, cases can sometimes start by getting charged in state court and then later transferred to federal court.
We can have a better idea of what direction your case may be headed after speaking with you, but we will often not know for sure until after we have spoken with Law Enforcement and/or Prosecutors.
A Psychosexual evaluation is when you sit down with psychologist to undergo questioning and testing, including a “sexual history” polygraph. There are a few doctors in Washington that are highly respected by the courts and prosecutor’s alike. You have to pay for these evaluations separately and it’s important to know that you are not paying the doctor to write a favorable report for you. Rather, the report will be an honest evaluation based on their professional opinions. Thus, it’s important to be be prepared for these interviews and also know when it’s a good idea NOT to do them. There are number of other important things to discuss in relation to these tests, and we would be happy to do so as part of a free consultation.
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We charge fair, competitive flat fees for our services. Here’s the problem you face with a lot of other attorneys: The ultra-expensive guys aren’t going to get you a better result than we are, and the dirt cheap guys aren’t going to much of anything for you at all. That’s where we come in. While we certainly don’t have the lowest fees in the Puget Sound, we won’t make you take out a second mortgage either.
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