Do you need a sex crimes attorney to defend your child pornography charges?

Are you facing a child pornography charge? Mere possession of child pornography is generally a felony of the third degree. An experienced Houston sex crimes attorney can examine the facts in your case and make sure that any and all defenses are explored and, if applicable, pursued.

At the Law Office of Nathaniel Pitoniak, we understand the pressure and fear that are generated when you are the subject of a sex charge, particularly one allegedly involving a child. We also understand how to provide you with the best possible defense against these types of charges. Call former prosecutor Nathaniel Pitoniak today for an honest assessment of your case.

What is Child Pornography in Texas?

The offense consists of possessing or promoting child pornography. But just what is child pornography? The applicable statute, section 43.26 says that it is an offense to knowingly or intentionally (a) possess, (b) access with the intent to view, or (c) promote any visual material that depicts a child under the age of 18 engaging in sexual conduct. The term “sexual conduct” is defined as:

  • Sexual intercourse – Penetration of the female organ by the male organ; or
  • Simulated sexual intercourse – Having the appearance of sexual intercourse; or
  • Deviate sexual intercourse – Contact between the genitals of one person and the mouth or anus of another person; or
  • Bestiality – Sexual contact between a person and an animal; or
  • Masturbation; or
  • Sadomasochism; or
  • Certain forms of lewdness – Showing the genitals, the anus or any part of the (female) breast below the top of the areola.

While the statute appears plain on its face, there are numerous “depictions” of children that could be interpreted as involving sexual conduct, but which in fact are quite innocent.

The next issue is how the law defines a “visual material” depicting the specified conduct. It certainly includes photos and films (even negatives). It also includes any physical medium (a computer disc, for example), that permits the display of the material on a computer, phone or video screen. Finally, the definition, by its terms, also includes satellite transmissions or “other method.” The definition is not clear on what “other method” means.

Finally, promotion in this context means to manufacture, sell, transfer, exhibit or advertise such material, or offer to do so.

Possession of Lewd Material Not Showing Genitals or Private Parts

In 2017, the legislature passed a new law (section 43.262) that made it an offense to possess or promote lewd material showing the exhibition of the genitals or pubic area of a child who is unclothed or partially clothed, which appeals to the prurient sexual interest, and which has no serious artistic, political, scientific or literary value. This is generally a state jail felony but does not require registration as a sex offender.

While the new law was intended to cover conduct not included in child pornography, it has created confusion over which law should be applied in a given case.

Defenses to Child Pornography Charges

While child pornography carries a significant stigma, and some people may judge you based solely upon unsubstantiated allegations, there are numerous possible defenses. In addition to more general defenses such as, for example, eyewitness mistake or illegal search and seizure, that may apply in many different types of cases, the following defenses may be available in a child pornography case:

  • Lack of knowledge or intent – How many people have opened an email or an attachment to an email without knowing the content? Probably all of us have, at one time or another. If the email/attachment contains child pornography, possession may be established, but the element of knowledge and/or intent is absent.
  • Entrapment – It is not unusual for a charge of child pornography, like many sex crimes, to begin with a police sting. Where the nature of the sting is such that it induces a person to commit the offense being charged, it can provide a valid defense.
  • Illegal search and seizure – When the police search your belongings (including your phone or your computer) and seize evidence without a warrant and/or without probable cause, this may constitute a violation of the Fourth Amendment. If that occurs, the evidence can be suppressed, and can be excluded from being used against you at trial.

The important thing to know is that you are innocent unless proven guilty beyond a reasonable doubt. And defenses are available, even in child pornography cases.

Child Pornography Defense Lawyer in Houston

The stigma of a sex charge can turn your life upside down. It is even more damaging when the charge relates to minors. If you have been arrested for child pornography, get the help you need. Contact Houston criminal defense lawyer Nathaniel Pitoniak today for a free consultation.