Overview of Child Pornography Laws
Federal criminal law prohibits various activities relating to material constituting or containing child pornography. Federal law defines child pornography as materials containing a minor engaging in actual or simulated sexually explicit conduct, which can include:
- Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal intercourse
- Bestiality
- Masturbation
- Sadistic or masochistic abuse
- Lascivious exhibition of the anus, genitals, or pubic area
Under federal law, a person commits a crime by:
- Knowingly transporting or shipping child pornography through any means or facility of interstate or foreign commerce, including by computer
- Knowingly reproducing child pornography for distribution through the mail or any means of foreign or interstate commerce
- Knowingly accessing or possessing any material containing images of child pornography while in the maritime or territorial jurisdiction of the United States or on any federal property
Michigan law also prohibits the creation, possession, or distribution of materials containing child pornography. State law defines child pornography or child sexually abusive material as any depiction of a child or a depiction that appears to depict a child engaging in a listed sexual act, including sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, or erotic nudity.
Understanding the Charges
Understanding the elements of criminal charges for the production, possession, or distribution of child pornography under federal or state law can help you formulate a compelling defense strategy.
Elements of Child Pornography Crimes
Federal and child pornography charges have several similar legal elements. First, an offense must involve a “visual depiction,” including photographs, videos, digital images, or computer-generated images. A visual depiction can also include undeveloped film or videotape and electronically stored data convertible into a visual image.
Next, the visual depiction must include a child or appear to include a child. A depiction may “appear to include a child” when it conveys the impression that it includes a person under 18 by using any part of an actual person under 18 to create the depiction. The age of consent in the state where a person created the visual depiction does not matter for purposes of child pornography laws; visual materials become child pornography when they include any person under 18.
An illegal visual depiction must also depict a minor or appear to include a child engaging in sexually explicit conduct. Sexually explicit conduct goes beyond sexual activity or intercourse and can include a lewd or lascivious display of a minor’s nude body, breasts, buttocks, genitalia, or pubic area. Lewd and lascivious displays include those that tend to general sexual arousal or excitement or lewd emotions.
Finally, state and federal child pornography laws include a “knowing” mental element to offenses. As a result, a person commits an offense when they engage in an activity they know or should know through reasonable diligence violates child pornography laws.
Federal child pornography laws also have an additional element to trigger federal criminal jurisdiction over state criminal jurisdiction. For a child pornography offense to become a federal crime, a person must use the mail or any means of interstate or foreign commerce (including a computer) to facilitate the creation or distribution of material containing child pornography. A person also commits a federal child pornography offense by engaging in that offense in the maritime or territorial jurisdiction of the United States or on federal property.
Charges for Production, Distribution, and Possession
Federal law outlaws the production of child pornography, defined as the “sexual exploitation of children.” Other federal statutes prohibit the distribution of child pornography through the mail or via means of interstate or foreign commerce, the possession of child pornography with intent to distribute via mail or interstate or foreign commerce, or the accessing or possession of child pornography on the territory or property of the United States.
In Michigan, state law prohibits the creation, possession, or distribution of child sexually abusive material (child pornography).

Common Legal Defenses
Defendants facing federal or state criminal prosecution for child pornography crimes may raise various legal and factual defenses to challenge the prosecution’s case and seek a dismissal or acquittal. Some of the common defenses in these cases include:
- Lack of Intent – A defendant may argue that the prosecution’s evidence fails to prove beyond a reasonable doubt that they possessed the mental intent required under the charged statute.
- Lack of Possession – Defendants may assert that the evidence fails to show they had actual or constructive possession of child pornographic materials. Actual possession occurs when a person has physical control over an item; constructive possession occurs when they have legal control over the item, such as storing the item in a place they exclusively control or having the ability to control others’ access to the item.
- No Depiction of a Minor – A defendant may argue that the visual depiction(s) does not contain a minor or any part of a minor, such as by presenting evidence establishing the age(s) of the person(s) in the depiction.
- No Depiction of Sexually Explicit Conduct – Alternatively, a defendant may argue that the visual depiction does not contain any sexually explicit conduct, such as sexual intercourse, masturbation, or erotic nudity, and thus does not constitute child pornography.
- Mistaken Identity – A defendant may claim mistaken identity by asserting that another party used their computer, network, or IP address to download or distribute child pornography.
- Accidental Possession – When a person inadvertently downloads or comes into possession of child pornography, they may obtain a legal defense by promptly reporting and turning over the materials to law enforcement.
- Unlawfully Obtained Evidence or Statements – Defendants may also seek to exclude evidence from the prosecution’s case by arguing that investigators unlawfully obtained the evidence through an illegal search without a search warrant or probable cause. Defendants may also seek to suppress statements they gave during interrogations after detention or arrest by asserting that law enforcement officers failed to advise them of their rights or used unlawful coercive tactics to force an inculpatory statement or confession.
The Role of Intent in Child Pornography Cases
Many child pornography cases turn on the issue of the defendant’s intent. Unlike other crimes that require a defendant to have intended to commit the crime or will the outcome of the crime, most child pornography offenses only require a defendant to have acted with a “knowing” state of mind. This requires a lower mental culpability than intentional or willful conduct.
A person “knowingly” commits a child pornography offense when they know that their actions could lead to an offense, even if they do not specifically intend to commit a child pornography offense. A person may also have criminal liability for an offense if they willfully ignore facts that would lead them to believe their actions would constitute a crime. For example, a person may commit a child pornography offense by downloading a file they know contains child pornography.
However, a person may negate criminal intent and avoid liability for a child pornography offense by showing they did not act knowingly. For example, suppose a person downloads a file off the internet or purchases a used computer or hard drive and discovers that the file or device contains child pornography. In that case, the person might avoid criminal charges by preventing others from accessing the file or device and promptly reporting it to law enforcement.

Navigating Modern Challenges
Today, many child pornography offenses occur over the internet, as offenders take advantage of their relative anonymity and their ability to acquire and share materials containing child pornography quickly. As a result, modern child pornography cases can involve complex technical issues, including tracing the downloading or distribution of child pornography to a specific IP address or computer. The complexities of distributing child pornography through the internet may create triable issues and reasonable doubt as to a suspect’s or defendant’s guilt. Defendants may assert that someone else used their computer, internet connection, or IP address to download or distribute child pornography.
Issues with Malware, Ransomware, and Third-Party Servers
In some cases, individuals may unsuspectingly become the target of a child pornography investigation when others use malware, ransomware, and other technology to hijack their computer network to commit a child pornography offense. Some viruses allow hackers to remotely access or control a person’s computer, potentially allowing them to use it to distribute child pornography surreptitiously. Other computer software allows parties to “spoof” IP addresses, making it seem like internet activity comes from a specific IP address.
The potential technical issues that may arise in a child pornography case make it critical to work with technical experts who can review the evidence and potentially provide opinion testimony rejecting the prosecution’s allegations.
Working with an Experienced Child Pornography Attorney
Hiring an experienced child pornography defense lawyer can give you the best chance of success in defending yourself against state or federal charges. When you have a criminal defense attorney representing you, your legal counsel can fight for a favorable resolution to your charges by:
- Thoroughly investigating your case to obtain all available evidence, including evidence not uncovered by police or prosecutors, to build the most robust case possible
- Explaining the details of your charges, what the prosecution must prove, and the potential outcomes of your case to help you make informed decisions
- Reviewing the facts and evidence, including working with computer experts as needed, to identify potential defense strategies you can pursue in your case
- Challenging the prosecution’s case by filing motions to exclude evidence when circumstances warrant or to dismiss your charges if the prosecution lacks sufficient evidence to bring you to trial
- Vigorously advocating in your defense at trial if you decide to contest your charges or assert your innocence
Preparing for Your Defense
If state or federal prosecutors have charged you with child pornography offenses, you can prepare to defend yourself against child pornography charges by:
- Gathering any relevant evidence you might think can help your criminal defense attorney prepare your case. Do not attempt to hide, destroy, or delete evidence, as doing so may constitute a separate crime.
- Exercising your right to remain silent by declining to speak with police or prosecutors or to sit for an interview with investigators before you have consulted a criminal defense attorney.
- Exercising your right to legal counsel by talking to a child pornography defense attorney as soon as possible after being arrested and charged with an offense.
- Working closely with your attorney throughout your case to help build a thorough defense strategy that allows you to pursue a favorable resolution to your charges.
Contact Federal Criminal Attorneys of Michigan
If state or federal law enforcement authorities have arrested and charged you with child pornography offenses, you need experienced legal guidance to help you understand your charges and identify potential defenses that can help you pursue a favorable outcome to your case. Contact the team at Federal Criminal Attorneys of Michigan today to arrange a confidential consultation with a knowledgeable criminal defense attorney. We’ll listen to your side of the story, review the facts of your case, and help you understand your legal rights and options. Let us protect your rights, reputation, and future as you face criminal prosecution.