RALEIGH, NC - What should you do if you've received child pornography in your email inbox or via a social media account?
On Tuesday, Raleigh Police sent an alert via the Nextdoor app alerting people of the legal ramifications of sharing child pornography. The warning came after several Raleigh residents contacted police about a pornographic video involving children being shared across the world.
That case was traced to Alabama, where arrests were made.
Even if you mean well by sharing such content with news media or friends, you can face legal trouble, including second-degree sexual exploitation of a minor.
Statute 14-190.17. reads:
(a) Offense. - A person commits the offense of second-degree sexual exploitation of a minor if, knowing the character or content of the material, he:
(1) Records, photographs, films, develops, or duplicates material that contains a visual representation of a minor engaged in sexual activity; or
(2) Distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity.
(b) Inference. - In a prosecution under this section, the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations or otherwise represents or depicts as a minor is a minor.
(c) Mistake of Age. - Mistake of age is not a defense to a prosecution under this section.
(d) Punishment and Sentencing. - Violation of this section is a Class E felony. (1985, c. 703, s. 9; 1993, c. 539, s. 1197; 1994, Ex. Sess., c. 24, s. 14(c); 2008-117, s. 4; 2008-218, s. 3.)
"If it can be proven that you possessed (child pornography) knowingly, then it's still a felony charge; where depending on your criminal record, you're going to jail for many months," said attorney Steven Saad.
Saad, who used to work for the Wake County District Attorney's Office, operates a law firm in downtown Raleigh. In the case of second-degree exploitation of a minor, Saad said, the case revolves around intent.
"You know that it involves a minor and is pornographic in nature and you decide to send that for whatever reason, I think there's a very good argument from the state that you knowingly sent it in violation of the statute," Saad said.
First degree sexual exploitation of a minor is the most serious of offenses, whereas it alleges the offender created or duplicated the child pornography with intent to sell. It's a "Class C" felony where offenders can see anyone from 92-171 months in prison. Third-degree sexual exploitation of a minor, and least offensive refers to simply possessing the material. It is considered a "Class H" felony where a first-time offender will likely end up with probation and possibly be required to register as a sex offender. In serious third-degree cases, convicts can see jail time between 8-19 months.
The legal description of criminal intent is Mens Rea. According to Cornell Law School, that intent is broken into four categories:
- acting purposely - the defendant had an underlying conscious object to act
- acting knowingly - the defendant is practically certain that the conduct will cause a particular result
- acting recklessly - The defendant consciously disregarded a substantial and unjustified risk
- acting negligently - The defendant was not aware of the risk, but should have been aware of the risk
This is where Saad said he believes situations can become risky. "If (someone) opened it and kept it on their computer for quite a bit, sent it to other people to get their opinion about it, it starts to blur the lines about what their intent was in having that material on their computer or device," Saad explained. "Jurors of (Wake County) and this state don't like to hear these cases of sexual exploitation of a minor for pornographic purposes. So what you end up finding are jurors who are quite sympathetic to the prosecutor's motive in prosecuting the case."
Saad also recommended getting in touch with one's internet service provider to report child pornography, in addition to contacting local police or the FBI. According to Saad, a person's actions or inactions may determine how the case is prosecuted, if at all.
He said if people are sending the child pornography in an attempt to solicit an opinion or get an "emotional reaction," Saad said, "I don't know if the law would see it that way."
In 2017, the Wake County District Attorney disposed two defendants for first-degree sexual exploitation of a minor, 17 for the second-degree offense, two for third degree, and five defendants were federally indicted.