The Illegality Of Child Pornography

In this article, you will learn:

  • The components of an illegal child pornography charge
  • How a digital forensic investigation can mean your computer is vulnerable

Assuming that we are talking about child pornography, which, the definition basically means a nude or a sexually explicit photo image or video of someone under the age of 18, everything is illegal. So, you can’t possess it, you can’t distribute or disseminate it. And since your computer makes a file of every image that appears on your screen, you really cannot look at it either. I almost never encounter a child pornography case where someone has physical photos, or if we go way back, VHS tapes, or even DVDs. Everything is electronic files, meaning that it’s all been allegedly acquired on the internet, and it’s all being found or stored on electronic devices. So this means that possessing or having any type of file that contains illegal images is illegal, even if it is just a file and not a physical picture or disc.

It gets a little tricky concerning computers, because there are different spaces and locations on your computer hard drive that most people do not know exist. You may have thought you deleted a file or folder, but with special software, law enforcement knows how to dig deep into the unallocated space and find it.

There must be some sort of material that they are alleging as child pornography. But, it doesn’t have to be an image, It could be a video, but it often is a combination of both. So, it really doesn’t matter what form it takes; if there is some sort of depiction of somebody under the age of 18 in a sexually explicit display or event, then that would be child pornography.

A Possible Difference Between Erotica And Sexually Explicit Content Concerning Child Pornography Under Illinois Law

There is a difference, although, it is difficult to distinguish between art and pornography. So, the question would be is there a difference between just having a nude photo of someone who is under the age of 18, and child pornography? Let’s take one extreme – if we have one video where there’s a sexual act or an act of sexual penetration, obviously that is going to meet the definition. Where it’s a little bit closer of a call is where we have images that just might be a photo of a nude person under the age of 18, and I would say that, arguably, would not be child pornography if the image is not sexually suggestive in some way. It is defined as any pose, posture or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or a fully or partially developed breast. So, the courts will look at the pose the individual is in, they will also look at how the image is focused. So, in other words, if the image is concentrating on the sexual areas of an individual’s body, that’s more likely to be considered child pornography than just someone who is a full body shot posed nude but under the age of 18. There is no bright line rule on that, and it’s going to be determined on a case by case basis.

Explaining Digital Forensic Investigation In Child Pornography Cases In Illinois

Digital forensic examination is usually done to devices such as a computer, a phone, or a tablet. If those items are seized, then there are experts in law enforcement that use special software to examine every nook and cranny of your computer. They examine different types of files and produce a report that will generally indicate that a certain number of files were found in this location, and here are the images or videos that were in those files. This is also where it can get a little tricky, because let’s say you viewed child pornography on your computer and then you deleted that image, or you saved that image of child pornography and later on, you deleted it. That file, if you know where to look, and if you have special software, is still on the computer. Most people do not know this and think that a deleted file is gone for good. This is not true, and most courts will consider you to still possess that image even if you didn’t know it was there, or didn’t know how to find or access it if you wanted to.

The digital forensic examination is conducted by an expert witness for the prosecution, and they know where to look and they go directly for that because they know that most people do not have the knowledge that a file might still be buried somewhere deep on their computer or device, or the knowhow to find it.

The Vulnerability Of Your Computer As Evidence In A Child Pornography Case

Police can seize your computer, but they can only do so under limited circumstances. If you give the police permission, they can seize the device. They sometimes call it a knock and talk. They might just come and have a discussion with you. Knock and talk situations are generally very intimidating and accusatory, and they will try and convince you to give them permission to take your computer or device and let them examine it. These scenarios are designed to convince you to surrender your devices and admit to wrongdoing. They are portrayed as being very innocent and voluntary, but the reality is much different. Because they are structured to be plausible voluntary discussions, knock and talk situations are very difficult to contest in court.

A second way would be if they had probable cause. If they have probable cause to arrest or seize your computer, then they can lawfully do that. Searches and seizures can also be conducted with a search warrant. A search warrant is a court order issued to allow the search and seizure after the judge has reviewed the evidence law enforcement has presented to the court, and the court has determined that there is probable cause to search or seize evidence. Some devices have excellent encryption, and it’s hard for police to access that without the password. Still, some computers have relatively weak passwords and are easily broken into, but at the end of the day, unless you are a computer expert, your computer really is a roadmap to everything that you have ever done on the internet. Every image you’ve ever looked at, every website you’ve ever been to, it’s all stored there whether you know it is or not. Law enforcement knows how to access that, and they will use it against you.

For more information on Child Pornography Charges In Illinois, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (708) 218-0947 today.