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Possession or Promotion of Child Pornography

Possession of Child Pornography and Promotion of Child Pornography charges are best handled by a criminal defense attorney who is particularly competent in this difficult area where the first amendment meets aggressive criminal prosecution at the crossroads of digital technology. If you are charged with possession of child pornography or promotion of child pornography, a skilled child pornography defense lawyer can make a huge difference in your case.

Child Porn offenses are defined by Section 43.26 of the Penal Code (described in detail below). In order to be convicted of Possession or Promotion of Child Pornography, the state’s attorney must show that a person: 1) knowingly or intentionally 2) possesses OR accesses with intent to view 3) visual material that the person knows visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.

Have you been charged with Possession or Promotion of Child Pornography in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

Making matters more complicated, child porn charges are prosecuted under both state and federal law. Federal laws related to child porn are numerous and complex. Cases can involve complicated issues like: Who “possesses” the computer files containing child porn if the computer is shared among many people? Do you really “knowingly and intentionally possess” a computer file that was automatically downloaded by an internet browser? How do you prove the age of an individual when you don’t know who the individual is and can’t contact them?

You can be prosecuted under federal child pornography laws in addition to, or instead of, state law. Federal child pornography laws carry extremely severe penalties. For example, a first time conviction for producing child pornography under 18 U.S.C. § 2251 (Sexual Exploitation of Children) involves fines and a statutory minimum of 15 years to 30 years in prison.  Harsher penalties are available if the government can show prior convictions or if the child pornography offense occurred in certain aggravated situations, in which case a convicted person may face up to life imprisonment.

Defending against child porn charges is a complicated task owing to the serious social stigma attached to child pornography cases (people are frequently pre-judged as guilty), complex technology used in the investigations and the confluence of difficult legal concepts in criminal law such as “possession” and the other ones described in the above paragraph.

For more information, click on a question below (or scroll down) to learn more about the Texas offense of “Possession or Promotion of Child Pornography.”

What is the child pornography law in Texas?

The offense of Possession or Promotion of Child Pornography is described in Section 43.26(a) of Texas Penal Code as follows:

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and

(2) the person knows that the material depicts the child as described by Subdivision (1).

The offense of Promotion of Child Pornography is described in Section 43.26(e) of Texas Penal Code as follows:

(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and

(2) the person knows that the material depicts the child as described by Subsection (a)(1).

Section 43.26(b)(1) specifies that “promote” has the meaning assigned by Section 43.25. The statute also provides a definition for “visual material.”2

What is “sexual conduct” under Texas Law?

“Sexual Conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”3 Note that the definition is not comprehensive because it uses the word “includes” without saying or implying that the list is complete.

“Deviate sexual intercourse” is defined as “any contact between the genitals of one person and the mouth or anus of another person.”4 “Sexual contact” is defined as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”5 Sexual intercourse” is defined as “any penetration of the female sex organ by the male sex organ.”6

How can I defend against a child porn charge?

There are affirmative defenses available, in addition to a defense for school administrators and law enforcement.7 But the most important aspect of defending yourself against a child porn charge is your lawyer. Do not attempt to represent yourself. Please call us now at (888) 239-9305 to speak with an attorney, or contact us online to schedule a consultation to discuss the best options for your defense.

Our defense strategies usually include attacking the state’s burden to prove that you “knowingly or intentionally possessed” the visual material. It is not necessarily true that files that you had access to means that you knowingly or intentionally possessed those files or knowingly or intentionally accessed with intent to view those files. Another common defense is that the person depicted was in fact over 18 years old. Remember that it is the state attorney’s obligation to prove that the child is actually under 18. Finally, the state’s attorney has to prove that you knew material depicts a child under 18 years old. Whether or not you knew the material was depicting someone under 18 is a common element that a good criminal defense lawyer can attack.

Did you possess the child pornography material? Did you “access with intent to view”?

What it means to “possess” something is a complicated area of law, and it is made even more complicated in the area of computer forensics and digital evidence. Determining whether you possessed a file is a difficult analysis to make, and there are many ways that such a conclusion could be attacked. You should contact us immediately to discuss the specifics of your case. Similarly, whether you “accessed with intent to view” is a difficult and complex notion for the state’s attorneys to prove and is open to attack on many fronts.

What are the affirmative defenses to possession of child pornography?

The child porn statute says that the “affirmative defenses provided by Section 43.25(f) also apply” as a defense to possession or promotion of child porn under Texas law.8 Those defenses are as follows:

  • (1) the defendant was the spouse of the child at the time of the offense;
  • (2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
  • (3) the defendant is not more than two years older than the child.

What is the punishment for a Child Porn Possession conviction?

Possession of Child Pornography, as charged under Subsection (a), is punished as a felony of the third degree.9 Promotion of Child Pornography, as charged under under Subsection (e), is punished as a felony of the second degree.10 Learn more about the differences between the degrees of felonies


Legal References:

1Texas Penal Code Section 43.25(5) – “(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.”

2Texas Penal Code Section 43.26(b)(3) –

(3) “Visual material” means:

(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

3Texas Penal Code Section 43.25(a)(2), the cross-reference from Texas Penal Code Section 43.26(b)(2) – “Sexual conduct” has the meaning assigned by Section 43.25.

4 Texas Penal Code Section 43.01(1), cross-referenced from Texas Penal Code Section 43.25(a)(7)

5 Texas Penal Code Section 43.01(3), cross-referenced from Texas Penal Code Section 43.25(a)(7)

6 Texas Penal Code Section 43.01(5)

7 Texas Penal Code Section 43.26(h) –

(h) It is a defense to prosecution under Subsection (a) or (e) that the actor is a law enforcement officer or a school administrator who:

(1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.261;

(2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and

(3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1).

8 Texas Penal Code Section 43.26(c)

9 Texas Penal Code Section 43.26(d)

10 Texas Penal Code Section 43.26(g)