What Constitutes Possession of Child Pornography in Virginia?
There has to be knowledge of possession of the illegal image and there must be some evidence, either direct evidence or circumstantial evidence, to show that the accused knew the content of the material. Sometimes, this can be done circumstantially just by the nature of maybe the filename of the image or it’s also done directly through the person’s admission to either law enforcement or other witnesses that the person was downloading and possessing images and video that he knew was child pornography.
How Does This Apply to Computer Usage and Storage?
The computer forensic analysis is really important in these types of cases because if the report comes back that there’s thousands of images that are stored on somebody’s hard drive and they are categorized and then the information and the data shows that it’s been accessed recently or multiple times, then that is going to paint a different picture of the accused. The strength of the evidence is going to be a lot stronger than let’s say for instance in a case in which the forensics show 5 images in the internet cache. It is going to be a lot easier to prove knowing possession in the first case versus in the second case because you can be searching the internet and come across images that you never wanted to look at and then it’s possible that your internet cache could save that as something that it appears as if you did view them. Viewing is different than possessing. There could be a good legal argument to make that distinction.
What Are Some Ways That You Have Seen Possession of Child Pornography Charged?
Frankly, the only cases that I’ve ever handled are child pornography cases related to computers and cell phones. It’s relatively rare in this day and age to see a case in which child pornography charges are made based on hard copy images or video tapes. It is my experience and my perspective that it is mostly through the internet, through what’s commonly referred to as peer-to-peer networking software or sharing software. There are lots of different types of software, but they all basically work the same. Importantly, a lot of that sharing is actually free. That is something that I think is more of a recent development due to the internet. The sharing of the images for free is easy versus maybe decades before. This will be something that people would be willing to pay money for and the supplier would demand in the past. Unfortunately, there is a market for it and this is how it would bring a lot of money because of the risk associated with it and the actual logistics of delivering hard copies as opposed to quickly sending images and sharing them through peer-to-peer networking software. It’s really dangerous conduct though because the police know these sharing networks exist. The users, I think, can fall into a false sense of security of anonymity on being on the internet and being in their own homes thinking, well, I’m not going to get caught because know one knows who I am or how to find me. This is happening all over the place. But people do get caught because law enforcement is monitoring the transfer of these known child pornography images.