Federal and state prosecutors aggressively pursue child pornography charges. They often use digital evidence to support their cases. But what if someone is in possession of such material without realizing it—or is charged due to a mistake entirely beyond their control?
The law acknowledges that not all possession is intentional. In some cases, someone may face charges for child pornography possession by mistake. Whether the content was downloaded inadvertently, misidentified, or placed on a device through malicious software, a mistake defense might apply. Some legal grounds to raise this defense could include:
Artistic Purpose
The line between protected artistic expression and illegal material is sometimes blurred, especially in photography, film, and other visual media. In cases involving nudity or suggestive content, context matters.
If the purpose of the image is demonstrably artistic and lacks prurient intent, it may fall outside the scope of the law. Still, prosecutors may not always see it that way initially—it’s wise to get a Dallas child pornography defense lawyer as soon as you think you’re under investigation or have been charged.
No Belief that the Portrayal Was a Child
Child pornography is, generally, any visual depiction involving a minor engaging in sexually explicit conduct. But what happens when someone downloads or views content they genuinely believe involves adults, only to be accused later of possessing illegal material?
This issue is more complicated with the advent of AI pornography, which can produce realistic-looking synthetic images. In some cases, the people portrayed may not even exist. If someone reasonably believed the content was computer-generated, involved adults, or was legal at the time of possession, that belief could factor into a mistake defense. However, it’s important to note that HB 2700 in Texas prohibits the use of AI to create sexually explicit visual material of a minor when it depicts an actual child.
Computer Viruses
Inadvertent possession is surprisingly common, thanks to malware and other malicious software. Some viruses can download illegal material to a device without the user’s knowledge, store it in obscure folders, or even use the device to host or share files as part of a larger network.
Courts have recognized that users cannot be held criminally liable for content they did not knowingly download or control. Qualified digital forensics experts can evaluate whether possession by accident occurred due to malware or remote interference.
Shared Properties or Computers
Another common scenario involves shared devices or network access. For example, in a college dorm, household, or workplace, multiple people might use the same laptop or Wi-Fi network. Law enforcement may not initially know who accessed or downloaded the illegal material.
Just being the owner or primary user of a device does not automatically mean you are responsible for every file stored on it. Prosecutors must prove that you had knowing and intentional possession or control of the illicit content.
Illegal Search
Even if law enforcement finds questionable material, how it was discovered matters. Law enforcement must generally have a valid warrant supported by probable cause to search your computer, phone, or cloud storage.
If authorities overstep their bounds, your attorney can file a motion to suppress. If granted, any evidence obtained during the illegal search may be excluded. This can result in charges being reduced or dismissed entirely.
Trust Broden & Mickelsen for Your Criminal Defense
The stigma, potential penalties, and emotional toll that come with a child pornography allegation are devastating, but Broden & Mickelsen, LLP can help. Our Dallas child sex crimes attorneys are board-certified specialists in both criminal law and criminal appellate law by the Texas Board of Legal Specialization. Contact us today for a free and confidential consultation.
