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Was your home or business just visited by the cyber-crimes task force who, armed with a search warrant, took all your electronic devices, external hard drives, disks, flash drives, and cell phones?
Were you either arrested or just released by either state or federal law enforcement, who believe you are either in possession of or been distributing child pornography, and advised you that your seized devices are now under investigation and they’re forensically mining the data on your seized devices, and lastly, gave you strict instructions for you not to move?
We get this initial call often from new clients often.
While child pornography has existed prior to the internet, the internet has dramatically evolved, allowing the accessibility, availability, sheer volume, and exchange of images and videos, especially with social media, chat rooms, and smart phones. Federal and state law enforcement investigations and cyber-crimes against child exploitation groups have evolved as rapidly, and the way prosecutors pursue convictions is to set examples with harsh prison sentences.
If this has happened to you, you need to call and have a confidential meeting with an experienced Texas and Federal child pornography defense firm familiar with how to successfully defend against a ruthless prosecution.
Child pornography is a crime that includes the knowing possession, distribution or manufacture of sexually explicit material, typically picture images and video, involving children under the age of 18 posing naked or involved in sexual activity.
Sexting even a partially nude picture of a minor can get you charged with this crime.
The mere accusation alone can ruin your professional reputation and your personal life. Being accused of producing, distributing, receiving or creating child pornography is a serious matter that can scare you to your very core. These crimes carry heavy penalties including jail time and fines. Due to the advancements in technology and the prevalence of things like digital media, it’s becoming easier to investigate child pornography claims and track and monitor a suspect’s activity. Couple this with society’s outrage surrounding these types of cases and prosecutors are taking a stronger stance and are less willing to reduce or settle claims.
No two states are the same when it comes to their laws. The state of Texas has its own unique structured set of laws regarding child pornography. We understand the Texas Penal Code in regard to these accusations and know how to properly interpret them and defend you in court.
This law is about the possession or the promotion of child pornography. According to this subsection of the Texas Penal Code knowingly and/or intentionally possessing or accessing with the intent to view material depicting a child under the legal age of 18 engaging in sexual conduct is a crime. Visual material includes photographs, videos, disks/diskettes, film, negatives, slides, and other modes to view such material.
Another law regarding child pornography is subsection 43.251 of the Texas Penal Code. This has to do with authorizing, employing, or inducing a child under the age of 18 to work in a place of business permitting or requiring the child to be nude or topless while working or being involved with sexually oriented activity for commercial gain. This is considered a felony of the second degree which can be increased to first degree if the child in question is under the age of 14.
Authorizing, employing, or inducing a minor under the age of 18 to engage in a sexual performance or sexual conduct is a crime under this law. It is considered a second-degree felony but can be increased to a first-degree felony if the child in question is under the age of 14. Under the same subsection, directing or producing material involving the sexual performance of a minor is a third-degree felony which can be increased to second-degree if the child in question is under 14 years old.
Quick reference on child pornography laws and penalties:
| §43.26: Possession or Promotion of Child Pornography | First-degree felony |
| §43.251: Employment Harmful to Children | Second-degree felony increased to first-degree felony if child is under 14 years old. |
| §43.25: Sexual Performance by a Child | Second-degree felony increased to first-degree if child is under 14 years old. Third-degree felony is crime is directing/producing material involving minor child. Increased to second-degree if child is under 14 years old. |
While the Texas Penal Code covers the broad child pornography offenses, there are other offenses that involve children that fall under the same umbrella.
According to the Texas Penal Code, “A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person … engages in sexual contact with the child or causes the child to engage in sexual contact.” (Id. § 21.11(a)(1).) Similarly, the offense also has to show that there was intent to arouse or satisfy a sexual desire of a person. (Id. § 21.11(c).) Usually, intent is determined by a defendant’s remarks, conduct, and individual circumstances of the case.
Here, there has to be evidence that a minor child was continuously abused by a person over the age of 17 for a period of or over 30 days. Specifically, the child has to be under the age of 14 to be considered a young child (TEX. PENAL CODE ANN. § 21.02(b)). There also has to be a series of two acts of sexual abuse or more in that 30-day period. In this, the acts have to fall under indecency with a child or aggravated sexual assault (Id. § 21.11(a); id. § 22.021(a)(1) & (2)(B).).
In order for aggravated sexual assault to be applicable, the suspect has to commit an offense against a child under the age of 14 intentionally and has to cause penetration of the child’s sex organ, mouth, or anus in any way or contact the sexual organ with another person’s sexual organ (TEX. PENAL CODE ANN. §§ 22.021.)
Anyone convicted of a crime related to child pornography must register as a sex offender on an official register. Most child pornography cases require registration for at least 10 years but can be lifelong in most cases. This is based on Chapter 62 of the Texas Code of Criminal Procedure. Along with the registration, a numeric risk level is also set as follows:
When you face a child pornography accusation, be it possession, distribution, receiving, or production, you can expect the prosecution to be extremely diligent in their pursuit whether it’s on the state or federal level. It’s a four-phase process that is difficult to deal with but having a highly skilled and experienced sex crimes defense team at your side will undoubtedly increase your chance of a success outcome. Knowing the process behind these criminal prosecutions will help you better understand what you’re up against and help you anticipate the things to come.
Like any other criminal investigation, a typical child pornography investigation will start by a law enforcement office finding child pornography that is accessible as a downloadable file. Once they determine the images are actual child pornography, they have to find and confirm the IP address that the image is attached to. Then, they need to get a court’s subpoena in order to determine who is associated with the IP address in question.
Any defense attorney worth their salt will build their defense on the images in question. This means that the age of the person in the images needs to be determined. It also has to be determined that you were fully aware that the child in the images was under 18 years old. This will help build your defense if it isn’t glaringly obvious that the child is a minor.
The courts have to look at the images, too. They have to see for themselves that the child is a minor and that a rational juror would conclude that the images show a child under the age of 18. In Texas, there is no need for expert testimony in a child pornography case. In these cases, the following methods can be used to determine a child’s age:
It is only when the child’s age is determined to be younger than eighteen that the case can move on.
Once the owner of the IP address is identified, law enforcement then has to get an official warrant in order to search that person’s home and seize any and all property that could have incriminating evidence. In the case of child pornography, this kind of property usually includes computers/laptops, phones, tablets, iPods, USB drives, external hard-drives, and any similar device that can store data. Everything has to be examined thoroughly to see if there is child pornography on any of them.
In some cases, an arrest warrant might be included along with the search warrant, but even if an arrest warrant isn’t issued at that time an investigator may arrest a suspect during the search and seizure if child pornography is found during the process.
An initial investigation will tell law enforcement if a household’s internet connection is linked to sending or receiving child pornography. If that is successfully determined, they’ll move on to get a search warrant in order to lawfully enter the property in question and search it for evidence.
This search and seizure are usually done by a task force trained specifically to combat internet crimes against children. They have experience investigating these crimes and know what to look for and how to go about the search and seizure.
In order to get the warrant, the investigative officers have to present facts to reasonably support their suspicions. They look to see if the suspect was on known peer-to-peer networks and shared or received image files with anyone. There are also software investigations that can compare the suspect’s files’ digital hash values with those of recorded child pornography files. In their warrant, the special internet crime task force investigative officers will also have to give specific information about the target person’s IP address. Once the warrant is obtained, the search and seizure can proceed.
After an arrest is made, the suspect may be able to post a bond depending on a great deal of individual factors including the type of charge. For example, if the defendant is facing charges on the state level, generally they’re eligible for a bond. In contrast, if you are indicted with federal charges generally you won’t be entitled to bail. A defendant’s work record, community involvement, family, prior criminal history, and how long they’ve lived in the county are factors a judge considers when determining bail. While posting bail can be helpful, if you have to choose between that and hiring a defense attorney, you’ll do much better spending money on a quality defense team.
The final phase is the actual defense against the accusations. As soon as you hire your defense counsel, they’ll begin to deciding how to strategically build your defense. This can be everything from figuring out if you can actually be linked to the crime in the first place to seeing if everything during the first three phases was done legally. For example, a good defense attorney will want to see if you were using an unsecured network connection. In that case, an unsecured network could actually mean that anyone else with access to that open network could’ve downloaded the illegal material without you knowing about it. During this phase, your child pornography attorney will work hard building your defense in order to prove your innocence.
Sex crimes, like financial crimes, are highly technical and difficult to defend. It’s important that your defense attorney be experienced and knowledgeable not only in the law, but specifically with these specific types of cases and how they can and should be properly defended.
For instance, a great number of cases revolve around the testimony of the complaining witness, who is usually viewed sympathetically by the judge and jury. However, the complaining witness will have been required to have been evaluated and interviewed by multiple sexual assault nurses (i.e., SANE, sexual assault nurse examiner) and other professionals who hold themselves out to having expertise in these matters. These unique interviews have specific rules, which, if not followed, can dramatically alter the statements a young child can make. A defense lawyer who’s inexperienced in these types of scenarios can mishandle, or simply gloss over, massive technical errors during trial.
That is one reason why experience in unique and high-risk criminal defense cases matters. Only then can you be sure that, if a trial becomes necessary, your defense attorney knows how to properly defend. Your defense attorney must also have experience in building your defense from the start, cross-examining child witnesses, cross-examining expert sexual assault witnesses, consulting and using expert defense witnesses to rebut the charges, and presenting the facts to an impassioned jury in a way that will convince the fact finders that you are not guilty of these heinous and vile charges against you.
Hiring a fly-by-night general defense attorney may save you tens of thousands, if not hundreds of thousands, of dollars, but what you’re saving in money, you’re gambling with the risk of losing your life as you know it.
As mentioned before, sex crimes defense is a unique and extremely difficult area of criminal law to begin with. However, defending an individual charged with a sex crime is like moving up into the major leagues – the DA will be presenting their top prosecuting attorneys, and if you want to have a fighting chance, you need a team thatknows how to fight on that level and win.
To analogize, it is true that anyone who played as a football quarterback in high school could play the game well. But, if you put them in the NFL as your starting quarterback, it’s clear they would get crushed. It comes down to knowledge, experience, skill, and specific learned wisdom.
Too much is at stake for you to bet on a high school QB in a game in which your life and your freedom are at risk.
At Schiffer Law Firm, our attorneys have over 40 years of combined experience defending sex crimes, and with those decades, an invaluable wealth of knowledge, strategy, and resources. Our defense team understands how serious these charges against you are, and the extreme penalties you face if you are convicted.
We will explain everything about your case to you, including the legal arguments, issues, possible defenses, and possible counter arguments made by the prosecution, so you will understand exactly what you’re dealing with. Further, it’s important to us that we listen to your side of the story, in your own words, so that we can analyze how it differs from the evidence and develop strategies based on the truth.
There will be no surprises and you will be kept informed of everything, every step of the way.
That’s a great question, but you won’t find the answer here. While there is nothing inherently secret about a great defense, some attorneys are simply better prepared, more creative, and more experienced than others. It’s that combination that makes our sex crimes defense team so successful in defending these cases. A professional sports team, or an army preparing for battle, doesn’t disclose its strategy to the opposition. It is only through a confidential, in-person, meeting with our attorneys, where your information is protected by the attorney-client privilege and away from any prying wire taps or snooping law enforcement investigators, that we will discuss potential strategies that are tailored specifically for you.
Call today to set up a confidential in-office or virtual meeting.
The first thing you need to do is accept the situation. You have been charged with a crime, and yes, this is really happening. Having worked with thousands of clients throughout our attorneys’ careers, we understand thoroughly the storm of emotions that you may be feeling right now. Accepting the situation you are in will allow you to make rational decisions moving forward.
Now that you’ve accepted the reality of your situation, it is imperative that you maintain a clear head and stay in control of your emotions. In far too many situations, we see clients betrayed by their emotions, which negatively impacts their own defense. Panic, anxiety, and second-guessing everything is the soil where bad legal strategy and decision making grows.
If you find yourself stressing about your situation, do what you can to calm yourself down. If you find that you need to talk with someone, please call us. We’ll discuss what’s going on and help you get a clear picture of your situation.
