Child pornography in any form is reprehensible and detestable. Public condemnation of those who make, distribute, and view child pornography is loud and vehement. Anyone even charged with involvement, regardless of whether they are ultimately found innocent, can expect to pay considerable social consequences. If found guilty, there are harsh criminal penalties.
Texas has one statute that specifically targets the possession or promotion of child pornography (§43.26), but also has two others that target behavior that produces it:
The laws prohibiting possession and promotion of child pornography, and sexual performance by a child are explicitly aimed at protecting children, defined as those under 18 years of age. Legal provisions for improper photography and visual recording do not single out children, but can be applied to cases when someone creates child porn secretly, without the victim’s knowledge.
Texas Penal Code §43.26 prohibits possession of visual material and accessing visual material that depicts a child engaging in sexual conduct. Visual material includes tangible and intangible electronic images and the devices used to transmit and display them.
It also prohibits the promotion or intent to promote child pornography material. Promotion is defined to include advertising, exhibiting, transferring, mailing, selling, and giving. The intention to promote is presumed whenever you have 6 or more images that are identical.
Texas Penal Code §43.25 prohibits:
“Performance” is broadly defined to include all visual representations capable of being exhibited to an audience.
Penal Code §21.15 prohibits all photographing or electronic visual recording of someone without their consent, if done with the intent of arousing or gratifying anyone’s sexual desire. Promotion of the photograph or recording is also prohibited, with promotion defined the same as under the “possession and promotion” statute.
Federal law criminalizes all acts involving child pornography, from the obvious (creating it, possessing it, distributing it) to many acts that are less obvious, like conspiring with pornographers and failure of Internet providers to notify the National Center for Missing and Exploited Children once they know about a potential violation of the laws.
Defenses to child pornography charges in Texas depend on the circumstances of each case, and on the specific crime with which you were charged.
A common defense to charges of possession is that the pornographic material was not actually in your possession or under your control. Another common defense to child pornography crimes is that the activity depicted is not, in fact pornographic, i.e., that it doesn’t depict the type of activity that is prohibited.
Texas statutes specifically provide three affirmative defenses – reasons the defendant isn’t criminally responsible despite committing the prohibited acts – for charges of possession of child pornography, promotion of child pornography and being involved with sexual performance by a child:
It’s often difficult to determine the age of the person depicted in an image. The Texas statute prohibiting possession or promotion of child pornography lists several specific means of establishing the age of the person depicted. These include personal inspection of the person alleged to be a child, and examining the image of the person. The law also provides for proof by:
Being charged with involvement in child pornography is often enough to cause law enforcement and the prosecutors to be overly zealous in their attempts to put the accused away and protect the community. Your ability to get or retain employment, maintain relationships and buy a home.
If you have been charged with, or are being investigated for, possible involvement in child pornography, call the Houston, Texas, firm of Mary E. Conn Law as soon as possible. Mary E. Conn is a top-rated Texas sex crime lawyer, with more than 30 years of experience in handling these sensational cases. Contact our office today for your free consultation.