National news has turned its attention to Subway pitchman Jared Fogle, whose home was raided this week in a child pornography investigation. Fogle was the subject of much shaming and his employer severed its relationship with him.

Fogle was not charged, and the investigation was actually aimed at an employee. Child pornography investigations can be aggressive and the results of even an accusation can be devastating. However, they can be aimed at the wrong person. Unlike in the court of public opinion, the police and prosecutors must prove all elements of their case beyond reasonable doubt.

What is considered illegal?

Laws prohibiting child pornography can be found under state law at 18 Penn. Cons. Stat. § 6312, titled “Sexual Abuse of Children.” The law prohibits any person from intentionally viewing or knowingly possessing material, including digital photos and videos, that depict a child younger than 18 engaged in a sexual act or simulating a sexual act.

It is also illegal to produce such material and to disseminate it. Disseminating could be as simple as forwarding an email or text message.

What is the punishment for these crimes?

Producing child pornography is a second degree felony, punishable by up to 10 years in prison and a $20,000 fine.

Disseminating, intentionally viewing or knowingly possessing child pornography is a third degree felony for a first offense, punishable by up to seven years in prison and a $15,000 fine. A second or subsequent offense is a second degree felony.

At a minimum, a person also must register as a sex offender for 15 years if convicted of possessing child pornography or for 25 years if convicted of producing or disseminating it.

What are possible defense if I am facing child pornography charges?

A critical part of the law is the state of mind, called the mens rea. Prosecutors must prove beyond reasonable doubt that the defendant viewed the material intentionally or knew they possessed material with young people engaged in sexual acts.

The mens rea often comes into play because, especially in an era where most prohibited material is digital, circumstances can easily arise where a person does not know he or she possesses the material. For instance, it could be attached to an email that the accused downloaded onto his or her computer without knowing. A person who trafficks in child pornography could hack into a person’s server or cloud to store files there for distribution, unbeknownst to the owner.

It’s important to keep in mind that the defense does not have to prove these scenarios occurred. It is the prosecutor’s job to prove they did not occur. If any reasonable doubt exists that any of these circumstances existed, though, the accused’s child pornography defense lawyer could raise the possibility to show the jury the reasonable doubt that exists.

Article Author

Michael J. Skinner, the founder of Skinner Law Firm LLC, is a former prosecutor with the Chester County District Attorney’s Office.

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