CHILD PORNOGRAPHY
CHILD PORNOGRAPHY UNDER WASHINGTON LAW
RCW 9.68A sets forth the criminal code sections regarding child pornography. Under these laws, a person can be charged with numerous offenses related to knowingly possessing and/or intentionally viewing “sexually explicit images” that involve child pornography. The crimes are charged as follows:
- Possession of depictions of a minor engaged in sexually explicit conduct (possessing child pornography), RCW 9.68A.070
- Viewing depictions of a minor engaged in sexually explicit conduct (viewing child pornography), RCW 9.68A.075
- Dealing in depictions of a minor engaged in sexually explicit conduct (distributing child pornography), RCW 9.68A.050
- Sexual exploitation of a minor (creating child pornography), RCW 9.68A.040
POSSESSING AND VIEWING CHILD PORNOGRAPHY
For possessing or viewing child pornography, there are two degrees representing the severity of the crime, with first degree charges being the most severe.
A person commits a first-degree possession or viewing offense by knowingly possessing or intentionally viewing either printed or internet materials showing sexually explicit conduct or images that involve:
- Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals,
- Penetration of the vagina or rectum by any object,
- Masturbation,
- Sadomasochistic abuse, or
- Defecation or urination for the purpose of sexual stimulation of the viewer.
A person commits a second-degree possession or viewing offense when the sexually explicit conduct or images in question involve:
- Depiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, or
- Touching of a person’s clothed or unclothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer.
As to the first type of material, note that it is not necessary that the minor knew that he or she was participating in the described conduct, or any aspect of it.
For possession offenses, each depiction or image counts as a separate crime. For viewing offenses, each internet session is a different offense.
CREATING AND DISTRIBUTING CHILD PORNOGRAPHY
A person commits sexual exploitation of a minor (creating child pornography) by either
- Compelling a minor by threat or force to engage in sexually explicit conduct;
- Causes, employs, or helps a minor to engage in sexually explicit conduct; or
- For parents or guardians, permitting a minor to engage in sexually explicit conduct;
Knowing that the conduct will be photographed or part of a live performance.
A person commits the crime of dealing in depictions (distributing child pornography) by publishing, printing, disseminating, exchanging, or selling visual or printed matter showing minors engaged in sexually explicit conduct, or possessing materials with the intent to do these things. Each depiction constitutes a separate offense. It is not necessary for the prosecutor to prove that someone did it for profit or was in the business of dealing depictions.
For the purposes of these laws, a “minor” means any person under eighteen years of age. Note that it is illegal to create, distribute, possess, or view images or depictions of any minor engaged in sexually explicit conduct even if the conduct itself is not illegal because the minor is above the age of consent.
PENALTIES FOR CHILD PORNOGRAPHY CHARGES
Almost all crimes involving child pornography in Washington are Class B felonies, including sexual exploitation, first and second degree dealing of depictions, first and second degree possession of depictions, and first degree viewing of depictions. Second degree viewing is a Class C felony. However, each type of charge carries a different sentence. For first time offenders, these range from 3-9 months (for second degree viewing) up to 31-41 months for sexual exploitation) in state prison, which will be followed by community custody (probation). Note that multiple counts of either offense can lead to a prison term of up to 10 years.
Importantly, conviction for any of these crimes will result in mandatory registration as a sex offender. Another important consideration in these cases is that changes in the law have led to an increased likelihood that a conviction for any child pornography charge will lead to significant restitution payments to the subjects of the images.
DEFENSES TO CHILD PORNOGRAPHY CHARGES
Persons in Washington accused of child pornography viewing and possession crimes can challenge any accusation with a legal defense. One of the most common defenses is for the defendant to show that any image or depiction involved in a case did not include a minor. Another defense is to show that people other than the defendant accessed a computer or device, or to show that material could have been downloaded without the user’s knowledge. Computer experts are often used in these cases to help make this showing.
Further, charges are often brought in these cases after law enforcement execute a search warrant. Keep in mind, though, that the Fourth Amendment to the U.S. Constitution declares that we have the right to be free from “unreasonable” searches and seizures. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any child pornography charges could be reduced or even dismissed if law enforcement did not follow proper procedures when conducting a search.
Black & Askerov is a criminal defense firm based in Seattle, Washington. Our attorneys draw on more than three decades of combined legal experience to help clients fight child pornography charges aggressively and head-on. They are passionate in their defense and tireless in their efforts. If you or a loved one has been charged with a child pornography offense, contact them today and get the quality legal representation you deserve.