Possession/Dissemination of Child Pornography and Posing/Exhibiting a Child

Possession and dissemination of child pornography or posing or exhibiting a child in a state of nudity or sexual conduct in Massachusetts are serious and indictable felony crimes punishable by lengthy imprisonment, strict probation supervision, hefty fines, and registration as a sex offender for decades. If you are charged any of these obscenity crimes in Massachusetts you can expect a relentless prosecution of the charges by the District Attorney’s Office who will enlist the help of forensic computer experts and detectives to testify in court about a defendant’s use of a computer and the Internet to prove their case and strictly enforce Massachusetts obscenity laws. High bail requests are not uncommon in child pornography cases and it is of the utmost importance to hire an experienced and knowledgeable Massachusetts Internet sex/child pornography defense lawyer as soon as possible to secure your release and tailor a competent and winning defense strategy for your case.

Under no circumstances should you speak with a law enforcement officer or consent to a search of any of your property including but not limited to computers, hard drives and cell phones without first having spoken with a qualified Massachusetts Sex Crimes Defense Attorney. If you are suspected of such crimes it is crucial to immediately invoke your right to a defense lawyer and end all questioning by law enforcement. They are not your friends and they are not looking to do you any favors or extend you any courtesies. The police are investigating and gathering evidence to assist the prosecution in obtaining a conviction against you in court In short, they are waiting for you to slip up and help them convict you.

It is not a crime to view adult pornography on the internet. However, it is clearly possible for unwanted images to be downloaded on a computer without your knowledge or consent when viewing certain web pages. Possession of even a single image can constitute a violation of the Massachusetts child pornography statute and the Commonwealth can indict a defendant separately for each child pornography image that is possessed or distributed. A skilled Massachusetts child pornography defense lawyer will be able to explore how certain pornographic images got on the client’s computer and where on the computer the images were stored and when, if ever, they were accessed or disseminated. Anyone who uses the Internet and conducts searches using Internet search engines like Google, Yahoo, or Bing is at risk of having unwanted images and pictures downloaded to their own computer without even knowing what the images are until they are clicked on and opened up for the first time after the images unwittingly got on to the person’s computer hard drive. Websites use tracking devices such as “cookies” which an Internet user never sees. A computer user can inadvertently go on to the wrong website and have many unwanted images, including child pornography downloaded on to the computer without their knowledge or consent. For example, it is akin to walking to your mailbox and retrieving your mail only to learn later that you received certain solicitations that you never sought or requested. This is not a crime. The prosecution must be able to prove beyond a reasonable doubt that the accused knowing and intentionally possessed material that was actually child pornography.

M.G.L. Chapter 272, § 29C makes it a crime for a person who knowingly purchases or possesses a negative, slide, book, magazine, film, videotape, photograph or visual reproduction, or depiction by computer, of a child the person knows or reasonably should know to be under 18 years of age and that child is doing any of the following:

• Actually or by simulation engaged in any act of sexual intercourse with any person or animal;
• Actually or by simulation engaged in any act of sexual contact involving the sex organs of the child and the mouth, anus or sex organs of the child and the sex organs of another person or animal;
• Actually or by simulation engaged in any act of masturbation;
• Actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal;
• Actually or by simulation engaged in any act of excretion or urination within a sexual context;
• Actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or
• Depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child; with knowledge of the nature or content thereof

An individual convicted of the crime of possession of child pornography for a first offense can be punished by:

• Imprisonment in the state prison for not more than five years;
• Imprisonment in a house of correction for not more than two and one-half years or by;
• A fine of not less than $1,000 nor more than $10,000, or by both such fine and imprisonment.

If convicted of child pornography a second time, a defendant faces:

• Not less than five years in a state prison or;
• A fine of not less than $5,000 nor more than $20,000, or;
• By both such fine and imprisonment

Third and subsequent offenders possessing child pornography face:

• Not less than 10 years in a state prison or;
• A fine of not less than $10,000 nor more than $30,000, or;
• By both such fine and imprisonment.

A defendant has no opportunity to have his or her possession of child pornography case continued without a finding or placed on file by the court.

Finally, this statute exempts and protects law enforcement officers, licensed physicians, licensed psychologists, attorneys or officers of the court who possess child pornography in the lawful performance of their official duties.

The Internet has drastically changed the way that child pornography is produced and disseminated by individuals in the United States and all over the world. In recent times there has been a proliferation in the ways that individuals gain access to and pay for child pornography over the Internet. This extremely large increase in child porn has created a very lucrative child porn industry that law enforcement seeks to snuff out and shut down in order to protect innocent and abused children. Accordingly, people charged with dissemination of child pornography can expect to be prosecuted harshly, especially in Massachusetts.

M.G.L. Chapter 272, § 29B makes it a crime to disseminate child pornography in Massachusetts. A defendant convicted of Disseminating child pornography can be punished by:

• State prison for a term of not less than ten nor more than twenty years; or
• By a fine of not less than $10,000 to $50,000
• Or three times the monetary value of the economic gain derived from said dissemination, whichever is greater, or
• By both such fine and imprisonment.

To gain a conviction for Dissemination of Child Pornography the prosecution must be able to prove the following things:

1. The accused acted with lascivious intent
2. The accused disseminated visual material that contained a representation or reproduction of any posture or nude exhibition (child pornography)
3. The dissemination by the accused involved the use of a child under eighteen years of age (children under 18 cannot give their consent)
4. The accused knew the contents of such visual material (child pornography) or
5. The accused had sufficient facts in his/her possession to have knowledge of the contents thereof, or has in his/her possession any such visual material knowing the contents or
6. The accused intended to disseminate the child pornography

Section 29A of Chapter 272 of the Massachusetts General Laws makes it a crime for an individual to pose or exhibit a child in a state of nudity of sexual conduct for the purposes of creating or reproducing visual material or to engage in any live performance involving sexual conduct. Specifically, this section mandates that anyone who hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits a child to be posed or exhibited in a state of nudity for the purpose of child pornography is punishable by the Commonwealth of Massachusetts. A conviction for violation of this section will result in the following penalties:

• State prison for a term of not less than ten nor more than twenty years; or
• By a minimum fine of $10,000 not to exceed $50,000; or
• By both fine and imprisonment.

For the purposes of this crime, persons under the age of 18 are deemed incapable of consent to any of the provisions of this offense. In order for the defendant to be convicted of this crime, the prosecution must be able to prove three things beyond a reasonable doubt:

1. The defendant either knew of should have known that the alleged victim was under the age of 18;
2. The defendant possessed lascivious intent; and
3. The defendant intended to create or reproduce visual material, or to engage in any live performance involving sexual conduct.

Allegations of a sex crime can be devastating to an individual, often resulting in serious harm to your career, reputation and personal life. In the event the prosecution secures a conviction for the alleged charge, the aftermath can be life altering, including jail time and/or lifetime registration on the sex offender registry. Police and public officials will entice you to speak with them in exchange for leniency; however, they should not be trusted regarding matters of this kind. Provided you are being investigated for, or charged with, allegations of sexual offenses, it is essential that you invoke your Sixth Amendment right to legal counsel and end all questioning by law enforcement. The Law Office of Patrick J. Murphy is experienced in the complex area of sex crimes, and understands the delicate intricacy with which these cases must be handled. Attorney Murphy has been a dedicated asset in the defense of his clients for more then 18 years, and is prepared to assert a powerful defense strategy tailored to your specific circumstances. The Law Office of Patrick J. Murphy is available 24/7 to provide you with a free legal assessment of your case. For additional information, please call (617) 367-0450 or complete the confidential contact form on our website.