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What is Child Pornography in Michigan?

For the State of Michigan, Criminal Sexually Abusive Material or CSAM is generically referred to as Child Pornography. It also includes sexually abusive activity, which is defined as having occurred when a sexual act is being performed. CSAM charges and cases are some of the most complex and serious offenses you can be charged with. CSAM is broken down into 3 different categories with varying degrees of punishment and possible enhancement or more serious penalties if “aggravated” for a total of 6 different penalties under the law MCL 750.145c.

What are the Different Types of CSAM Charges?

The three main types of CSAM are Production, Distribution, and Possession. In cases where the evidence supports an “aggravated” enhancement, each of these are subject to increased penalties. The term aggravated is more fully defined below.

What is Production?

Production is perhaps the most serious CSAM charge and is a 20-year felony offense and up to a $100,000.00 fine. If the charge is enhanced, then it becomes a 25-year felony and up to $125,000.00 fine. Production is the common and broadest term used to define a necessary element of this offense, but the law provides many different terms as also fulfilling the element of production. This multitude of definitions makes this statute quite broad and subjective.

The law is also broad in that it criminalizes any effort towards allowing a child to participate in any sexual act(s) to produce sexual material. This statute also applies if the accused arranges to produce, or reproduce, or provides the financial assistance toward doing so. Further, the statute covers any scenario where the person conspires, which means more than 1 person discuss or is otherwise involved in the production of such activity or material.

What if the age of the Person Depicted in the Material is Unknown?

As it relates to the intent requirement, Michigan sex crime law requires that the person knows or should know based upon a reasonable person standard that the person in the images or videos is under the age of 18, or depiction of under 18. The law requires that if you have not taken necessary and reasonable steps to determine the age, you may be subject to the law.

What is Distribution of Child Pornography?

Distribution is a 7-year felony and up to $50,000.00 fine. If it is enhanced, then the penalties increase to 15-year felony, and $75,000 fine. The legal distinction from Production is that Distribution offenses is that the content is not being individually produced or financed, but it is being promoted to distribute or provided access to others.

What if I did not Intend to Distribute Child Pornography?

Essentially the burden is on you to show that you precluded the ability of others to obtain the subject child pornographic material. There is an argument often made by the state in these cases that the lack of taking active measures to avoid underage images from being distributed is all that is required to meet this element of the crime. This argument is in response to the significant number of peer-to-peer software apps currently used, such as BitTorrent and similar programs are commonly utilized in CSAM cases. What this creates is a legal argument for prosecution that the image(s) were received for the purpose of distributing considering all other users have access to your file. There are cases that argue that a user can permit or deny access to others within the network, whether the user intended to share or distribute the material.

What is Possession?

Possession of CSAM is a 4-year felony offense and up to a $10,000.00 fine. If it is aggravated, it is a 10-year felony and up to a $50,000.00.

The law of possession is not limited only to physical possession of the material. It can also include those who knowingly sought out such material and again that the person should reasonably know what they were accessing. In many cases this charge stems from an investigation where law enforcement has obtained a warrant and found images on a computer but can include many different factual scenarios. This can include scenarios when the material is found during routine computer maintenance or retrieved from a cell phone where files were originally located and images flagged through social media from National Center for Missing and Exploited Children, and Possession charges can even be issued and prosecuted even if the material itself is no longer available but consistent with accessing or obtaining the material. This is most often done through a forensic analysis and finding key or common search terms in a person’s internet search history.

What is Aggravated Enhancement?

Aggravated is an enhancement of the penalties for these offenses, which was legislatively created years ago. These enhanced penalties apply to cases where the material or images include prepubescent depictions. Prepubescent is an image or depiction of child prior to puberty. It can also include sadomasochistic abuse or bestiality. The most common grounds for the aggravated enhancement occur when there are more than 100 images found or a single video.

What do I do if I am Contacted by the Police?

Remain Silent. Be Cooperative. This covers most situations. If law enforcement has contacted you, which is usually in person, they are there to serve a warrant. Obtain a copy of the warrant from the police, and then read the warrant carefully. During the search, the police will send at least one officer who will want to talk to you. This is the time to be cooperative but is also the time to remain silent. Provided the warrant includes same, allow the police to collect all devices that may contain the material they believe to be illegal. After the search, the police are required to provide you with an “inventory sheet,” which will include a list of all items removed. Normally, you will not be arrested at this time as law enforcement is seeking evidence to support their probable cause for an arrest, meaning they are seeking to recover the explicit child pornographic and/or abusive material before seeking an arrest warrant.

Also, it is important to understand that with child pornography cases, the federal government is often also involved in the investigation. For example, an FBI agent may have first notified the local state authorities that you are a person of interest in their child pornography investigation. An FBI agent, and sometimes even an assistant United States attorney, may be present during the search of your home. This means that along with state child pornography charges, you may also be facing federal child pornography charges. Because of this it is important for you to search for and retain a lawyer who can represent you at both the State and Federal levels. Many state crimes lawyers do not handle federal cases or have very little experience representing criminal clients in Michigan’s United States District Courts for the Eastern or Western Districts.

If you think you might be charged with child pornography, it may be in your best interest to hire a sex crimes lawyer from the Barone Defense Firm to represent you. It is essential to have representation a as soon as you learn that you are or might be the subject of a sex crimes investigation, meaning throughout this pre-charge process and beyond. It is imperative that you do not sit and wait, it is time to act. As outlined above, the potential charges are extremely serious. You, your family, your future all requires the proper protections that we provide.

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