Is My Child a Child Pornographer????

At Petit & Dommershausen, we get calls many times from parents who tell us that the police are at their door, they have a search warrant and they want to take all the computers, electronic devices and phones from their household as part of the warrant.  They then tearfully explain that their child is alleged to be in possession of child pornography and that he is going to be questioned by the police.  We have to reassure the parents that what the officers are saying might be technically true, there is, as Paul Harvey used to say, “The rest of the story.”

Child pornography is defined as possessing a recording which shows a child engaged in sexually explicit conduct.  However, what most people don’t realize is that “a child”, under Wisconsin law, means someone that is under the age of 18.  Many times teenagers share pictures of themselves with each other or inadvertently receive computer files that turn out to be child pornography.  This happens because many teenagers become fascinated with sex and computers in their high school years.  Teenage boys, in particular, like to have parties where they play online gaming.  Sometimes the parties lead to the teenagers downloading movies that might be at the movie theater that have been pirated.  There are many types of online file sharing systems that allow transfers of movies and files with large amounts of data.  Teenagers love to see the newest movies and show off to their friends that they have already downloaded a movie onto their computer that might still be playing in theaters or have not been released yet to DVD.  Unfortunately, those same file sharing networks are also the networks on which child pornographers share their wares.

Sometimes, in the downloading of movies, teenagers will download something that might pique their interest.  Many times it is videos that young girls might make and post on the internet of them having sex with their boyfriends, showing themselves off to the camera, etc.  Many times, these girls are 14 through 18 years of age.  Obviously, many 17 year old boys have interest in girls of that age.  Therefore, they naturally will be curious about those images and many times download same.  It should be noted that, under Wisconsin law, if someone does a criminal act after the age of 17 years of age, they are considered an adult.  Therefore, if a 17 year old boy is downloading images of girls that are near his age, he could be charged in adult court for child pornography.

If the individual viewing these images is under the age of 18, he is facing a felony with a maximum penalty of 18 months of initial confinement in prison followed by two years of extended supervision after he gets out of prison.  If the teenager viewing these items is a day over the age of 18, he would be facing 25 years in prison with the possibility of up to 15 years of actual incarceration and up to 10 years of supervision afterwards.  There is also a three year mandatory minimum prison sentence for each of those counts.  Each individual image viewed or film viewed is a single count.  In addition, he could be facing a fine of up to $100,000 for viewing each image.

So why is this your concern?  You have a good son, your son doesn’t have any psychological issues and you trust that he wouldn’t do this.  I have had that same conversation with many good parents and their equally good sons.  Teenage boys are curious.  Teenage boys have been curious since the start of civilization.  Unfortunately, teenage boys do download things that sometimes could be problematic.  So the question is how do the police detect these illegal downloads without coming to your home?  This stuff must be protected under the Fourth Amendment because you have an interest of privacy in your home, correct?  The answer is, under certain circumstances, no; you don’t have that right.

How the police detect illegal activity is they patrol the link on these file sharing programs.  The police do not need a warrant to watch people sharing files back and forth because those people are engaged in public sharing of information and those that go on the file sharing programs are giving up their right to be secure from others peaking in.  The police watch these exchanges and view what is being downloaded.  The police know what titles may have objectionable material even before the person downloading same would know.  If it is one of the titles that the police are aware of and they see a computer downloading that information, the police take note of the IP address of that connection.  The police then, with the information they have, get a search warrant for that address.  Many times the police agency that is getting this warrant might be in a completely different state or might be employed with the federal government.  They prepare the subpoena in their jurisdiction, send it to the internet provider, and the internet provider then tells the law enforcement agency who the subscriber of that internet address is and where they are located.  That police agency then calls the local police agency and a warrant is produced locally based on that information.  The police in that jurisdiction then show up at your door, knock on your door and if you are not home, bust through the door and seize all of your items under color of the law.  They then will do a search of the computers.  Sometimes they find the files right away or sometimes they have to send the files to the State Crime Lab in Madison to have their experts look for items.  This is where things get even more dicey.

If your son accidentally downloaded something and started watching it and saw that it was offensive, he may have erased it.  Many people think that you can erase things from your computer and it is gone forever.  However, when a file gets erased, it goes to unallocated space.  That item remains on your computer until such time in the future that that space is needed.  Once that space is needed, the material is then overwritten.  However, until that file is overwritten, it is still visible to people at the crime lab that know how to extract these details.  Simply possessing the item, even after deleting it, still leaves one facing criminal charges.  As set forth above, the criminal charges have penalties that are quite severe.  In addition, it also has other long lasting consequences (like inclusion on the Sexual Offender Registry for a period of 15 years).  Once someone gets convicted, serves their sentence and spends 15 years as a registered sex offender, their chance for school, meaningful employment, and even decent housing is ruined.   Their chance to find people that they may want to date, have a family and live a productive life is also compromised.  In some respects, the juvenile would be better robbing a person or selling drugs because the consequences would be less.

What can you do?  The simplest thing to do is have this conversation with your children.  Let them know that anything they download could have larger consequences than a slap on the wrist or a stern warning from the police department.  Certainly child pornography is bad.  We don’t want the production of child pornography in our society and we don’t want people looking at child pornography.  However, our society has a problem with understanding that there are different degrees of gray.  Not everything is black and white.  It is important to discuss how this works with teenagers before they make this mistake.  If they do make a mistake, they should get the best attorney they can find.  That attorney, of course, should be versed in how child pornography is shared, defenses for this type of case and know of creative ways to deal with these cases so the conviction does not remain on the record.  While this blog is meant to explain some of the problems with child pornography statutes and how somebody that is innocent could end up being charged with same, it is not meant to be all inclusive.  If more information is needed, competent counsel should be sought.

Lastly, laws change and the content and description of this posting may not be accurate in the years to come as child pornography or other laws may change and the actual penalties and/or defenses in this matter might be different.

If your child is questioned anywhere in the Fox Valley (Appleton, Green Bay, Oshkosh, Calumet) call Petit & Dommershausen for help before your child makes a statement!