In years past, most child pornography charges were brought by federal law enforcement and prosecuted in federal court. Today, the majority of these cases are prosecuted under South Carolina law. Several South Carolina statutes are commonly involved, including:
- Sexual Exploitation of a Minor, Third Degree
- Sexual Exploitation of a Minor, Second Degree
- Sexual Exploitation of a Minor, First Degree
Convictions can result in severe penalties, including lengthy prison sentences, substantial fines, and mandatory sex offender registration.
Most of these charges are prosecuted by the South Carolina Internet Crimes Against Children Task Force (ICAC) within the South Carolina Attorney General's Office. These prosecutors, based in Columbia, handle cases throughout South Carolina.
Recent changes to South Carolina law have increased the potential penalties for Sexual Exploitation of a Minor offenses. As a result, these charges are among the most serious criminal offenses prosecuted in South Carolina.
What Happens After a Child Pornography Investigation Begins?
Many investigations begin after an online company submits a cyber-tip to law enforcement. The first indication that someone is under investigation is often when officers arrive at their home with a search warrant authorizing the seizure and examination of electronic devices.
It is not uncommon for numerous law enforcement officers to be present during the execution of a search warrant. Some officers may be wearing body armor and carrying rifles. The experience can be overwhelming and intimidating.
If the suspect is present, investigators will often attempt to conduct an interview. In some cases, questioning takes place inside the residence. In others, the individual may be questioned while seated in a law enforcement vehicle.
Following the execution of a search warrant, computers, cell phones, tablets, external hard drives, cloud storage accounts, and other digital evidence may be examined by forensic analysts. Charges are sometimes filed immediately, but in many cases investigators spend weeks or months reviewing electronic evidence before seeking arrest warrants.
Because investigations often begin long before formal charges are filed, anyone who believes they may be under investigation should consider consulting with an attorney as early as possible.
Potential Defenses to Child Pornography Charges
There are several possible defenses to a prosecution for child pornography in South Carolina. The specific defenses available depend upon the facts and circumstances of each case.
Challenging the Search Warrant
One potential defense is whether the search warrant was properly issued and properly executed by law enforcement.
Search warrants can be challenged in court. If a challenge is successful, evidence obtained through an unlawful search may be suppressed. This means that digital evidence or other items seized during the search may not be admissible against the defendant at trial.
Challenging Statements Made to Law Enforcement
Another issue is whether statements made to law enforcement were obtained lawfully.
Individuals under investigation have a Fifth Amendment right to remain silent. If investigators use improper coercion, fail to honor a request for counsel, or fail to provide required Miranda warnings when applicable, statements obtained during questioning may be subject to suppression. If successful, those statements may not be used as evidence by the prosecution.
Identity and Attribution Issues
The prosecution must prove beyond a reasonable doubt that the defendant was actually responsible for the alleged conduct.
Digital forensic evidence alone may not always establish who downloaded, possessed, uploaded, or viewed the files at issue. In some situations, multiple individuals may have had access to a device, network, or online account. In other cases, the available evidence may be insufficient to establish who was using a device at a particular date and time.
Lack of Knowing Possession
The prosecution must generally prove that the defendant knowingly and intentionally possessed the alleged child pornography.
There are situations in which an individual may be searching for legal adult material but unknowingly receives, downloads, or is exposed to illegal content. Depending upon the circumstances, accidental possession or lack of knowledge may be a defense to the charges.
Whether the Material Is Actually Illegal
Another important issue is whether the photographs or videos alleged by the government to be illegal actually satisfy the legal definition of child pornography under South Carolina law.
In many cases, only a limited number of law enforcement officers review the materials before charges are sought. Arrest warrants are frequently issued without the magistrate judge personally reviewing the images or videos.
There are situations in which individuals are charged, only for later review to reveal that the materials do not meet the legal definition of child pornography or do not depict individuals who can be proven beyond a reasonable doubt to be under the age of 18.
A thorough defense should include an independent review of the evidence relied upon by law enforcement.
The Importance of Digital Forensics
Many Sexual Exploitation of a Minor cases rely heavily on digital forensic evidence.
Investigators may attempt to determine when files were downloaded, where they were stored, whether they were viewed, and who had access to the device where the files were found. Digital forensic evidence is often highly technical and subject to interpretation.
A careful review of forensic reports may reveal weaknesses in the state's case, alternative explanations for the presence of files, or errors in the investigative process. Understanding how digital evidence was collected, preserved, and analyzed is often a critical component of defending these charges.
In some cases, the defense may retain its own forensic computer expert to independently review the evidence and evaluate the conclusions reached by law enforcement investigators.
Psychosexual Evaluations in South Carolina Child Pornography Cases
In appropriate cases, we regularly retain a qualified forensic psychologist to conduct an independent psychosexual evaluation of our client. These evaluations can provide important information that may be relevant to the defense, bond hearings, plea negotiations, sentencing proceedings, and other stages of the case.
A forensic psychologist may evaluate whether an individual meets the diagnostic criteria for pedophilia or any other recognized mental health condition. The evaluation can help identify factors that may be relevant to understanding the allegations and the individual's personal circumstances.
The psychologist may also recommend counseling, treatment programs, educational resources, or other services that could be beneficial. In many cases, early identification of appropriate treatment options can help an individual address concerns and demonstrate a commitment to making positive changes.
Another important aspect of a psychosexual evaluation is the assessment of risk. Using clinical interviews, psychological testing, and accepted evaluation methods, a forensic psychologist may offer an opinion regarding whether an individual presents a risk of harm to children or to the community at large. These assessments are based on the individual's history, characteristics, and other relevant information available to the evaluator.
Because allegations involving Sexual Exploitation of a Minor often carry significant stigma, it is important that decisions be based on objective evidence rather than assumptions. An independent psychosexual evaluation may provide valuable information that helps place the allegations in proper context and provides the court with a more complete understanding of the individual involved.
The decision to obtain a psychosexual evaluation depends on the specific facts and circumstances of each case. When appropriate, these evaluations can become an important component of an overall defense strategy and may provide information that would not otherwise be available through the criminal investigation alone.
Federal and State Child Pornography Charges
Although many child pornography cases are now prosecuted in South Carolina state courts, some investigations result in federal charges.
Federal prosecutions involve different procedures, sentencing structures, and evidentiary rules than state court prosecutions. The decision regarding whether a case proceeds in state or federal court can significantly affect the potential penalties and overall defense strategy.
An attorney representing an individual under investigation should evaluate both state and federal considerations when assessing a case.
Pre-Trial Discovery and Case Preparation
There are many potential defenses that may apply depending on the circumstances of a particular case.
The process of identifying those defenses often begins with pre-trial discovery. Discovery allows the defense to obtain police reports, forensic reports, witness statements, search warrants, digital evidence, and other materials relevant to the prosecution.
Reviewing this information allows the defense to determine what evidence exists, what evidence may be missing, what constitutional challenges may be available, and how the state's case can be contested in court.
In many cases, effective representation involves more than simply reviewing the evidence collected by law enforcement. It may also require consulting with forensic computer experts, forensic psychologists, investigators, and other professionals who can assist in evaluating the allegations and preparing a defense.
Frequently Asked Questions
Can police search my phone or computer without a warrant?
In many circumstances, law enforcement must obtain a valid search warrant before searching electronic devices. However, exceptions may apply depending upon the facts of a particular case. Police can search without a warrant if given permission to do so.
Do I have to speak with investigators?
Individuals generally have a constitutional right to remain silent and to request an attorney before answering questions from law enforcement. You are never required to answer questions or make statements to law enforcement.
Can child pornography charges be dismissed?
Every case is different. Depending on the facts, potential defenses may include challenging the search warrant, contesting statements made to law enforcement, disputing ownership or control of a device, or challenging whether the material meets the legal definition of child pornography. This may result in cases being dismissed, or successfully challenged in court.
While no lawyer can promise or guarantee a specific outcome or dismissal in a criminal case, there are steps that can be taken in any situation to increase the likelihood of a more favorable outcome.
What is Sexual Exploitation of a Minor in South Carolina?
Sexual Exploitation of a Minor is the South Carolina offense commonly used to prosecute allegations involving child pornography. Depending on the circumstances, charges may be filed as first, second, or third degree offenses, each carrying different penalties.
What is a psychosexual evaluation?
A psychosexual evaluation is an assessment conducted by a qualified forensic psychologist. The evaluation may include clinical interviews, psychological testing, a review of records, and an assessment of risk factors. Depending on the circumstances, the evaluation may provide information regarding diagnosis, treatment recommendations, and whether an individual presents a risk of harm to children or the community.
Contact a South Carolina Child Pornography Defense Attorney
Allegations involving Sexual Exploitation of a Minor are among the most serious criminal charges prosecuted in South Carolina. A conviction can result in lengthy prison sentences, substantial fines, and mandatory sex offender registration. Early investigation and careful review of the evidence can be critical to protecting your rights.
If you are under investigation or have been charged with Sexual Exploitation of a Minor in South Carolina, contact attorney James R. Snell, Jr. to discuss your case. The sooner an attorney becomes involved, the sooner steps can be taken to preserve evidence, evaluate potential defenses, and begin preparing a strategy for your case.
Call (803) 359-3301 today. Same-day appointments are typically available. We accept cases throughout South Carolina including Greenville, Charleston, Horry, Beaufort, Columbia, Lexington, Florence, York and Aiken counties.
Disclaimer: The information provided in this article is for general informational purposes only and is not legal advice. Every case is unique. Prior results obtained by the attorney in one matter do not indicate similar results can be obtained for other clients in other matters.