Child Pornography Cases in CT State Court

---

Child Pornography Statutes 

In Connecticut, Child Pornography (“CP”) is defined as any photograph, film, videotape, picture or computer-generated image or picture which depicts a person who is under the age of 16 years old engaging in sexually explicit conduct. Conn. Gen. Stat. §53a-193(13). 

There are three degrees of CP cases. A person charged with CP in the First Degree in violation of Conn. Gen. Stat. §53a-196d, a Class B felony, is deemed to have violated this law when he possesses 50 or more images of CP. A conviction of this charge carries a mandatory minimum sentence of 5 years in prison. 

A person charged with CP in the Second Degree in violation of Conn. Gen. Stat. 53a-196e, a Class C felony, is deemed to have violated this law when he possesses between 20 and 50 images of CP. A conviction of this charge carries a mandatory minimum sentence of 2 years in prison. 

A person charged with CP in the Third Degree in violation of Conn. Gen. Stat. 53a-196f, a Class D felony, is deemed to have violated this law when he possesses between 1 and 20 images of CP.  A conviction of this charge carries a mandatory minimum sentence of 1 year in prison.

If the person charged is a minor, someone who is under the age of 18, and possesses CP or distributes it to other minors, there is no mandatory minimum prison sentence, and the crime is classified as a Class A misdemeanor pursuant to Conn. Gen. Stat. §53a-196h.

The method by which it is determined how many images of CP are involved is harsh. It is not necessary to possess a large amount of CP to meet these statutory numerical thresholds. For example, by operation of state law each one second frame of a video containing CP is considered to be an individual image of CP. 

There are other CP related charges. Some examples include, Promoting a Minor in an Obscene Performance in violation of Conn. Gen. Stat. §53a-196b, a Class B felony. A person who is charged with this crime usually has disseminated images of CP to others. This charge does not carry a mandatory minimum prison sentence. Another potential charge is Importing Child Pornography in violation of Conn. Gen. Stat. §53a-196c, a Class B felony, and which carries a mandatory minimum sentence of 5 years in prison. A person who is charged with this crime has knowingly imported 3 or more images of CP into Connecticut.

Affirmative Defenses

An affirmative defense is a legal doctrine that precludes criminal liability which the defendant has the burden of proof to establish through the presentation of evidence to the court. 

There are affirmative defenses available in CP cases. One affirmative defense is when a person can demonstrate that he, (1) possessed less than 3 visual depictions of CP; (2) did not knowingly take possession of those images; and (3) promptly and in good faith took measures to destroy each visual depiction. Another affirmative defense would be if a person possessed a nude image of someone under 16 years old for a bona fide artistic purpose. Under either one of these circumstances possession of CP would not be in violation of the law.

Defending a Child Pornography Case 

Law Enforcement Investigation into CP Cases 

The inception of an investigation into a CP case usually occurs when law enforcement, typically Homeland Security (“HS”), receives a notification, commonly referred to as a “tip”, that a person is engaged in possessing or disseminating child pornography. All cloud-based providers (e.g., iCloud, Verizon cloud provider, Adobe Acrobat) are mandated by federal law pursuant to, 18 U.S. Code § 2258A, to report any suspected images of child pornography to the CyberTipline of National Center for Missing and Exploited Children (“NCMEC”). Once Homeland Security receives a tip from NCMEC a HS agent obtains a court order to gain information on the suspect’s internet provider and home address. Once the HS agent has the suspect’s home address the agent reaches out to local enforcement to continue the investigation. During the investigative process local law enforcement will execute search warrants to obtain the suspect’s electronic equipment and data. The police will then get an arrest warrant for the suspect if the images seized contain child pornography as defined by the Connecticut General Statutes.

Legal Issues 

There are various defenses to prosecutions for CP. An important defense strategy that we employ is challenging the constitutionality of the law enforcement search warrants utilized to obtain the evidence of CP. Both the Federal and Connecticut Constitutions provide important protection against unreasonable searches and seizures by law enforcement.  In some situations, the Connecticut Constitution provides significant additional protections against unreasonable searches and seizures that are greater than those provided by the Federal Constitution. If it can be established that the law enforcement search violated a person’s constitutional rights, the seized evidence containing CP is suppressed, and the prosecution terminates. 

For example, CP cases are highly technical and time intensive for law enforcement, so there are instances when law enforcement allows a considerable time lapse to occur between the date of the NCMEC tip and the date of the search warrant execution for CP. This time lapse can rise to the level of a constitutional violation. 

In addition to legal challenges, we also explore other avenues to mitigate any potential punishment. For example, we determine whether the person charged has significant, pre-existing mental health problems.

If so, we engage qualified medical professionals, who conduct a detailed and thorough psychological examination of our clients. The retained medical expert then provides an extensive written report with his/her findings to be presented to the court and the prosecutor in an effort to minimize any punishment. 

Post Arrest Considerations

Possession of Child Pornography is viewed as a serious offense in the Connecticut criminal justice system. People accused of that crime often have substantial, six figure bonds set by the court which must be posted before their release from police custody. After release, the court may impose significant restrictions on a defendant’s activities such as house arrest, surrendering a passport, GPS monitoring, either monitoring of electronics or a total restriction on the use of any internet capable devices, reporting regularly to a probation officer, permitting a probation officer to search a defendant’s house, and having no unsupervised contact with minors.

During the course of our representation, we make substantial efforts to lessen the effect of these measures, including lowering the amount of the bond and reducing the number and nature of restrictions that are placed upon a person charged with CP.