How Is Child Pornography Defined In Illinois?
Child pornography is defined under Illinois law as any depiction, either by film, video or photo, of an individual under the age of 18 who is nude or engaged in a sex act or sexual conduct. It is illegal to produce and distribute child pornography. It’s also illegal to merely possess it, and possession can include viewing it on a computer and deleting the image or video.
How Is Child Pornography Determined To Be Either A State Or A Federal Crime?
It depends on who starts the investigation. Generally, if it’s a federal agency that’s investigating the crime, they will decide whether or not they want to charge it as federal or state child pornography. Sometimes, based on the circumstances surrounding the offense, if a federal agency investigates somebody who’s never been arrested before and the facts and circumstances are relatively mild on the child pornography spectrum, then they’d turn that investigation over to state authorities and let them charge it in state court. However, large-scale child pornography production and distribution will typically go to federal court.
What Are The Penalties For Possession And Distribution Of Child Pornography?
In Illinois state court, all child pornography cases are felonies. The least serious offense is a class 3 felony, which carries three to five years in prison, but most state child pornography cases are either class 1 or class X non-probationable offenses. Overall in state court very few child pornography charges are eligible for probation, and all child pornography offenses would require lifetime sex offender registration upon conviction. In federal court, the penalties for child pornography cases are much more severe. It is not uncommon for a federal child pornography case to have potential sentences of 10, 20, even 30 or more years in prison.
What Are Some Potential Defenses Used In Child Pornography Cases?
In the age of technology that we live in, most child pornography cases involve computers, the Internet, and some sort of messaging and email program. Computers are very complicated devices, so much so that I generally retain computer experts to help with the defense. The particular computer expert that I have used on several occasions is an ex-federal agent, and he’s proved to be very effective and very helpful in creating and perfecting defenses in child pornography cases. And although there are many defenses of a child pornography case, there are a few that I have used successfully more than others. Obviously, every case is different and would be determined based on the facts of that particular case.
One strategy I’ve successfully used that can be effective is calling into question the age of the individual and the photo or film, and you can do this in a variety of ways. For example, sometimes the people portrayed in the film or photo are models that are very young-looking professionals who have made a career based on their youthful appearance even though they are over the age of 18.
Also I have raised the issue of possession, particularly when an image or video has been viewed on a computer but is not saved. That also is an effective defense. That type of defense would usually require our computer expert to explain to the judge or the jury how an image can still exist on a computer even if it was deleted or wasn’t saved.
Finally, illegal search and seizure issues come up frequently in child pornography cases as well. If a search is conducted without a warrant or probable cause, we may be able to suppress the evidence. If the evidence is suppressed, the prosecutor may have to dismiss the case.
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