What is Child Pornography Under Virginia Law
There is a statutory definition for child pornography, which states that it is sexually explicit visual material which utilizes or has as a subject an identifiable minor. Then, they describe an identifiable minor as a person who was a minor at the time that the visual depiction was actually created, adapted, or modified, or whose image as a minor was used in creating, adapting, or modifying the visual depiction and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristics. Therefore, one of the important things to keep in mind is that the actual identity of the minor is not required to be proven in a prosecution.
What Child Pornography Includes
The material that is covered under the statute means a picture, a photograph, a drawing, a sculpture, a motion picture film, or a digital image. It would include images, films, or videos that are also on somebody’s computer.
If there is evidence on somebody’s computer or laptop that has been seized by law enforcement and they can see that there are suspected child porn images in the computer cache, then sometimes the prosecution or law enforcement may choose to press charges. Although, the statute does require that if there are images in the internet cache that there has to be three or more for it to qualify under the statute.
A lot of times, the prosecutors will use their discretion and not charge cases in which it is just in the cache just because those could be difficult cases to prove because the prosecution must prove that the accused knew that the illegal images were on their computer. That would be a weak case for them. They may use their discretion not to charge somebody if that is the only evidence.
What the Prosecution Needs to Prove
The prosecution does need to prove that the person or subject in the image was under 18 when the image or video was created, but the identity of the child does not need to be proven. There can be other evidence establishing the age. One way that the prosecution does this is through a database that is maintained by the National Center for Missing and Exploited Children.
This organization works closely with law enforcement and they retain a database of what they call known child pornography. They have information as to how they know that the person in the image is a minor.
Those are called the known images. It is a well-known and widely used method for which law enforcement can use to establish the age of the person because otherwise if they would have to find the actual juvenile in every case, that would be extremely difficult. So, they came up with this system.
The records are admissible in a criminal trial because they are business records which is an exception to the hearsay rule. Therefore, testimony from the child or the child’s parents is not required to prove that the subject in the image is under 18 years old.
Different Child Pornography Offenses in Virginia
Under Virginia law, there is possession and there is distribution and reproduction. There are also related offenses like soliciting juveniles to participate in the production of child pornography. There is an offense that is related to the maintenance of an internet website that is used to facilitate and to distribute child pornography.