CHILD PORNOGRAPHY AND ONLINE SOLICITATION OF A MINOR

Virginia’s criminal code includes a category of online sex offenses, including child pornography offenses and charges for solicitation of a minor. Unlike most criminal cases, both the offense and investigation in these cases mostly occur on the internet. The penalties in these cases can be very serious, including harsh mandatory minimum sentences.

Child pornography charges in Virginia include the possession, distribution, or production of images or videos of minors engaging in sexual conduct. Under Virginia law, this can include images of a person who is not older than 18 years old, but who is depicted or presented with the appearance of being less than 18 years old.

These days, most child pornography charges involve images and videos on the internet. Generally, law enforcement scans forums and peer-to-peer networks for people who are uploading or downloading child pornography. In fact, the government has a database of “known” child pornography images that they use to track down people downloading or distributing those images. In other cases, law enforcement officers go “undercover,” posing as people seeking child pornography or making their children available for making child pornography. Possession, distribution, and production charges each carry different penalties, and there are different defenses available depending on the charges.

Possession of child pornography under Virginia Code § 18.2-374.1:1 is a class 6 felony and applies to anyone who “knowingly” possesses an image of a minor engaged in a lewd exhibition of nudity, sexual excitement, or sexual conduct.

As a class 6 felony, the punishment is up to 5 years in prison. Critically, any additional image possessed counts as a separate, class 5 felony that carries up to 10 years in prison. Anyone convicted of possession of child pornography must register as a sex offender in Virginia.

There are several defenses against child pornography possession charges. First and foremost, the prosecution must prove that the defendant owned or had control over the images or the device that contained the images and that the defendant knew they were in possession of the images. In cases where people live with roommates, for example, law enforcement may be able to tie the child pornography downloads to the house, but not necessarily to an individual person. In other cases, a person may be unaware that they have child pornography images on their devices, such as when a browser temporarily stores images in its cache. A forensic examination and forensic expert can help explain to a jury how these images got on the device without the person’s knowledge.

Virginia law also provides a defense if the images are possessed “for a bona fide medical, scientific, governmental, law-enforcement, or judicial purpose by a physician, psychologist, scientist, attorney, employee of the Department of Social Services or a local department of social services, employee of a law-enforcement agency, judge, or clerk and such person possesses such material in the course of conducting his professional duties as such.”

In cases where the evidence of a defendant’s possession of child pornography is very strong, there are still ways to significantly reduce the potential sentence, or even get the case deferred and dismissed. For example, a defendant can undergo a “psychosexual evaluation” to show they do not have a sexual interest in minors and are not a risk of re-offending.

Since there is no mandatory minimum for a possession of child pornography, it is possible to get a sentence of probation in these cases. Moreover, under the recently passed Virginia Code 19.2-392.2, a conviction for possession of child pornography can be sealed after 10 years.

Virginia Code 19.2-303.6 is another new law that allows the court to put a person on probation and eventually dismiss their case if the person is diagnosed with autism spectrum disorder or another intellectual disability, and the court finds the offense was “caused by or had a direct and substantial relationship to the person’s disorder or disability.”

Distributing, reproducing, or soliciting another to send child pornography under Section 18.2-374.1:1 is a more serious offense than possession and carries much harsher penalties. To convict a person of distributing child pornography, the prosecution must show that the defendant had knowledge that they were distributing images of minors engaged in sexual conduct.

The mandatory minimum sentence for a conviction for distributing child pornography is 5 years in prison, with a maximum of 20 years. If more than one image is charged, each image carries a mandatory minimum sentence of 5 years, and these sentences must run consecutively to each other. A conviction for operating “an Internet website for the purpose of facilitating the payment for access to child pornography” is a class 4 felony that carries between 2 and 10 years in prison. Unlike possession offenses, a conviction for distribution of child pornography cannot be sealed under § 19.2-392.12.  

A common defense to distribution charges is to show that the defendant did not know he was distributing child pornography, especially if they are using a device or program that automatically makes their images available for others to download. This is a common feature in peer-to-peer networks, though sometimes a person’s knowledge of how peer-to-peer networks work is sufficient to show they knew their images would be distributed. Otherwise, a person charged with distributing child pornography generally has the same defenses available as someone charged with possession.

Under Virginia Code § 18.2-374.1, a person commits the offense of producing child pornography when they create child pornography by photographing or filming a minor engaged in sexual conduct, entice or solicit a minor to perform in child pornography, or are otherwise involved in producing child pornography.

Production charges the most serious kind of child pornography charges and carries the harshest penalties that vary based on the age of the victims. The offense carries a mandatory minimum term of imprisonment of 5 years where the minor is less than 15 years old and the defendant is at least seven years old than the minor. If there is second act of production, the mandatory minimum is 15 years. If the minor is between 15 and 17 years of age, and the same 7-year age gap applies, the mandatory minimum sentences are 3 years for the first instance, and 10 years for the second instance. Any mandatory minimum sentences imposed must be run consecutively to each other.

As with distribution, a conviction for production of child pornography cannot be sealed. There are defenses available, however, especially in cases where an undercover law enforcement officer recruited or influenced a defendant’s decision to produce or attempt to produce child pornography. The officer’s tactics cannot improperly induce someone to do something they are not already predisposed to do, so cases where an officer offered a defendant money or otherwise enticed them should be explored for the defense of entrapment.

Under Virginia Code § 18.2-374.3, it is illegal for a person to use a computer or other communications system (like the internet) to expose his genitals to a minor, propose that the minor expose his or her genitals, propose the performance of a sexual act involving the minor, or entice or invite a child to a place in order to commit those acts. A “minor” in these cases includes anyone younger than 15 years old.

While some of these cases involve a person communicating online with an actual child, most of these cases usually involve an undercover officer posing as a child online, often in a chat room or by posting an ad online. In these undercover “sting operations,” the officer tells the person on the other end of the chat that they are a minor and then offer to meet up to engage in sexual conduct. Under Virginia law, a person can be guilty of online solicitation of a minor if they believe the undercover officer is minor.

The penalties for solicitation of a minor vary depending on the defendant’s prior criminal history and age compared to the victim.

If the victim is between 15 and 18 years old, a conviction for solicitation of a minor is a class 5 felony carrying up to 10 years in prison. For a second violation, the mandatory minimum is 1 year in prison, with a statutory maximum of 20 years. If the minor is less than 15 years of age, and the defendant is more than 7 years older, the statute requires a mandatory minimum sentence of 5 years for a first act of violating the statute, and a mandatory minimum of 10 years for a second violation. 

If the mandatory minimum applies, the conviction cannot be sealed under § 19.2-392.12. However, if the conviction does not charge the offense with the mandatory minimum, it remains a class 5 felony and thus can be sealed under § 19.2-392.12. A conviction for soliciting a minor requires registration as a sex offender.

In some cases, a defendant will be able to argue based on the evidence that they did not know or believe that they were communicating with a minor. That can be a viable defense if the chats reflect that the defendant showed skepticism or questioned the person’s statement, which is not unusual in cases where an undercover officer sends a picture of an adult, sometimes using filters, while pretending to be a child. Some defendants may also show that they were just “roleplaying” or acting out a sexual fantasy with someone they thought was also roleplaying as a minor.

In undercover “sting operations,” the officer’s tactics are important to review because the defendant may be able to raise the defense of entrapment. In order to be able to argue that a defendant was entrapped by law enforcement, they must show 1) that the law enforcement officer induced them to engage in the criminal conduct, and 2) the defendant was not already predisposed to engage in that conduct.

In most of these cases, you can argue that an officer induced you to act a certain way by sending you suggestive pictures or getting you to respond to their messages. There are many ways to show a defendant was not already predisposed to engaging in sexual conduct with a minor. For example, one can show that the defendant had no other conversations with minors outside of the conversation with the law enforcement officer. You can also highlight the officer’s tactics that may have violated protocols, which require the officer to let the defendant lead the conversation and set the tone.

Finally, just as with possession of child pornography offenses, a defendant may be able to get probation and their solicitation charges dismissed if they show they have a diagnosis for autism or another intellectual disability.

Our criminal defense lawyers in Virginia understand child pornography laws and how best to challenge serious child pornography charges. We have helped dozens of people successfully resolve child pornography, online solicitation, and related charges in Virginia with pretrial dismissals, not guilty verdicts, and reasonable plea deals.

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