The crime of possession of child pornography is a serious offense in Illinois. Given the public policy of protecting children and other vulnerable individuals, Illinois has developed a robust mechanism for addressing child pornography crimes. While there are many variations of this crime, such as this blog post will focus on possession of child pornography.
What Qualifies as Possession of Child Pornography in Illinois?
As established in 720 ILCS 5/11-20.1(a)(6), it is a crime to knowingly possess child pornography in Illinois. The term child pornography applies to “film, videotape, photographs or other similar visual reproduction or depiction” of a sexual nature. Under Illinois law, these materials must involve a child under 18 years old or a person with a severe mental disorder.
It is important to note that Illinois employs a knowledge requirement for child pornography. The person in possession of these explicit materials must know – or have reason to know – that a child under 18 years old or a person with a severe mental disorder is involved. Otherwise, the crime of possession of child pornography does not apply. In most instances, it is apparent that the individual in the image or video is under 18, but in some cases, it could prove to be a valuable defense if the age of the individual is difficult to ascertain.
What Does Voluntary Possession Mean in Illinois?
As detailed in 720 ILCS 5/11-20.1(b)(5), the crime of possession of child pornography requires voluntary possession of the explicit materials in question. Possession is considered voluntary if the alleged perpetrator specifically sought out child pornography or received such materials and did not get rid of them immediately.
Stated otherwise, possession of child pornography is not a strict liability crime in Illinois. To obtain a conviction, the state must show that the alleged perpetrator knowingly and voluntarily obtained the child pornography in question. It is not enough to show that a person had child pornography in his or her possession without any knowledge of the explicit materials.
An example is a search performed on an individual’s computer. Once there is a forensic examination of a computer hard drive, it can find images that are still on the hard drive as well as images that have been deleted. Once an image is deleted it goes to the recycle bin where the user has access of the image, and it can be restored. However, once the recycle bin is deleted, the material that were in the bin are removed and can no longer be accessed without forensic tools. Once the recycle bin gets deleted, the material goes to what is known as the unallocated space of the computer. Once there, it is very difficult for prosecutors to prove that an individual knew the material in the unallocated space was ever there.
Can a Person Face Multiple Charges for Child Pornography in Illinois?
As underlined in 720 ILCS 5/11-20.1(a-5), the possession of each visual depiction of child pornography constitutes a separate offense. If the alleged perpetrator possesses multiple child pornography materials, then he or she may face multiples counts of criminal charges, though the explicit materials must be distinct from one another. The possession of multiple copies of the same child pornography material does not constitute multiple violations.
However, if the alleged perpetrator possessed several copies of the same child pornography materials, then he or she may face criminal charges for possession with the intent to disseminate.
What are the Penalties for Possession of Child Pornography in Illinois?
As highlighted in 720 ILCS 5/11-20.1(c), there are two different penalty structures for the crime of possession of child pornography: Whether or not the offense involves a “film, videotape, or other moving depiction.” As one would expect, if the material involve moving depictions, the sentencing is enhanced.
If the child depicted in the pornographic materials is under 13 years of age, there is a chance of heightened penalties under 720 ILCS 5/11-20.1(c-5). If the alleged perpetrator has a previous sex crime conviction and possesses pornographic materials of a child under 13 years of age, then it is a Class 1 felony. The penalties include a sentence range of four to 15 years and fines ranging from $1,000 to $100,000.
Additionally, there is a special provision concerning penalties for repeat offenders under 720 ILCS 5/11-20.1(d). If a person receives multiple convictions for child pornography crimes within a 10-year period, the offender must undergo a mandatory psychiatric evaluation.
Representation on a Child Pornography Case
When faced with a charge of possession of child pornography, it is important to consider all defenses and mitigation. Only after a thorough review can someone determine whether the case can be disposed of with a motion or trial, or whether the case needs to resolve by way of a plea. The factors that need to be considered are:
- The basis for the search warrant
- The initial tip that led to the search warrant
- The amount of material as well as what it depicts
- A detailed understanding of the forensic examination
- The offender’s background
- The results of a sex evaluation
Keep in mind that this is not an exhaustive list, but gives an idea of the amount of material that needs to be reviewed before making any crucial decisions. Even if a child pornography case does not result in jail time, it is still a felony conviction that is non expungeable and non sealable. It also has a mandatory requirement of registering as a sex offender for life.
If you have legal questions, contact Sami Azhari to get answers and start planning your defense.