By GNGF Design/Development on October 2nd, 2024 in Uncategorized
Child pornography is a very serious crime, and if you’re searching, “police found child pornography on my phone,” it’s best to contact an attorney immediately. You are facing felony charges under Texas PENAL § 43.26.
A conviction can change your life drastically, making it challenging to get employment and resulting in jail time and fines.
What Constitutes Child Pornography?
Child pornography does not require sexual intercourse, although it is one of the terms used to define what is child pornography. What the law states is that you must knowingly or intentionally:
- Be in possession of child pornography, or
- Access with intent to view child pornography, or
- Promote visual material of a person under 18 engaging in some form of a sexual act
Sexual acts can be broad, but they can include:
- Intercourse
- Simulated intercourse
- Bestiality
- Masturbation
- Lewdness
Deviate sexual intercourse would also be considered child pornography.
Lewdness is also a broad term, and while this can include showing, in full or part, a person’s anus, genitals or breasts, it’s important to note that not all photos or videos are classified as child pornography.
You’ll want to discuss your options with an attorney and determine if the visual depictions fall within the definition of pornography or not.
Can Law Enforcement Search My Phone Without a Warrant?
In all cases – whether child pornography is associated or not – it’s important to never consent to have your phone searched. You have constitutional protections under Texas Constitution, Article I Section 9 that grant you protections from unlawful searches and seizures.
If police found child pornography on my phone, it would have to occur in one of two ways:
- I had to give the officer consent, or
- A warrant was issued.
Warrants give law enforcement the right to search your phone, and without one, you have a right to privacy.
Are Minors Exempt from Child Pornography Laws?
No, but there is a certain level of leniency that may be offered. For example, if you receive a text message from a girlfriend or boyfriend that is lewd and unsolicited, you are expected to delete it within a “reasonable amount of time.”
If you are both minors and within two years of age of each other and are dating, you may also not face any consequences.
Minors are not exempt from the law, and if you or someone you know is a minor and facing these charges, act quickly because there’s a risk of being charged in juvenile court.
What are the Penalties Associated with a Child Pornography Conviction?
In the state of Texas, the penalties associated with a child pornography conviction are serious. You may be facing state or federal charges, which have much harsher penalties.
For example:
- Possession of Lewd Visual Material Depicting a Child may be charged as a third-degree felony or a state jail felony. If you have priors, you may be facing a second- or first-degree felony charge.
- You may be charged with promotion if you have six or more copies of child pornography in your possession. If this is your first offense, it would be charged as a second-degree felony.
- In the case of promotion, the child’s age will also be a factor. If it involves children under the age of 13, first-degree felony charges will apply. For children between the ages of 14 and 17, second-degree felony charges apply.
The penalties for third-degree, second-degree and first-degree felonies are severe and life-changing.
- Third-degree: Up to $10,000 in fines and 2-10 years in prison
- Second-degree: Up to 20 years in prison
- First-degree: Up to life in prison
In addition to fines and prison time, a conviction will also require you to register as a sex offender.
How an Attorney Can Help
The police found child pornography on my phone – now what?
If you find yourself asking this question, the answer is clear: contact an attorney.
Child pornography charges are very serious, and the penalties for a conviction are harsh. An experienced attorney can:
- Explain your rights and protect them
- Help you navigate the legal system
- Gather evidence and start building your defense
The situation may feel hopeless, but there are several defenses an attorney can use to achieve a more favorable outcome, including:
- Lack of knowledge/intent. Maybe you opened an email attachment without knowing its contents. In this case, you may be in possession of child pornography, but the intent/knowledge element is missing.
- Illegal search and seizure. Unless you give permission, the police must have a search warrant and/or probable cause to search the content of your phone.
The sooner you hire an attorney, the better. You are facing serious penalties, and an attorney can help you find the best course of action to take in your case.
If the police found child pornography on your phone, contact criminal defense lawyer Nathaniel Pitoniak today to schedule a consultation.
