Child Pornography Lawyers
Criminal Defense Lawyers Specializing in Child Pornography
Recent Success Cases
Child Pornography
Result: Acquittal
Court: Criminal Court
Prosecution: Public Prosecutor's Office
Requested sentence: 2 years imprisonment for possession of child pornography.
Child Pornography
Result: Acquittal
Court: Provincial Court
Prosecution: Public Prosecutor's Office
Requested sentence: 5 years imprisonment for the crime of distribution of child pornography.
The crime of Child Pornography
Lawyers specialized in Child Pornography crimes.
The crime of child pornography is typified in Article 189 of the Penal Code, which refers to prostitution, sexual exploitation, and abuse of minors.
It is a crime that encompasses different conducts, whose common factor is that they all attempt against sexual freedom, the minor’s honor, and privacy. Some of these conducts are the possession of child pornography, the recording of this material, and the collaboration and distribution.
The victims of this crime may not only be minors but also include those who are especially vulnerable due to their capacities and who need special protection.
Definition of pornographic material in the crime of child pornography
According to Article 189 of the Criminal Code, child pornography or pornography in the production of which persons with disabilities in need of special protection have been used shall be considered as follows:
- Any material that visually depicts a minor or a person with disabilities needing special protection engaging in sexually explicit conduct, real or simulated.
- Any representation of the sexual organs of a minor or a person with a disability in need of special protection for primarily sexual purposes.
- Any material that visually depicts a person appearing to be a minor engaged in real or simulated sexually explicit conduct, or any depiction of the sexual organs of a person appearing to be minor, for mainly sexual purposes, unless the person appearing to be a minor seems to be eighteen years of age or older at the time the images were obtained.
- Realistic images of a minor engaged in sexually explicit conduct or real images of the sexual organs of a minor for primarily sexual purposes.
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Elements of the crime of Child Pornography
The elements of the typical conduct of child pornography are the following:
Capturing or using minors or persons with disabilities need special protection for purposes or in sexual performances, public or private, or for the recording of pornographic material. This conduct also includes all those who finance or profit from these acts.
Producing, distributing, selling, offering, or facilitating the production, sale, exhibition, or dissemination of pornographic material. Also, when minors or persons needing special protection are used to produce this material, in addition to simply possessing pornographic material, which is also included in this crime.
Proof of intent in the crime of child pornography
In this sense, it is necessary to take into account the structure found in the terminal (files hosted in the hard disk or disks or other storage devices), the number of times they are shared (since this parameter leaves a trace in the computer system), the reception by other users of such images or videos as coming from the terminal of the crime’s author. And as many external circumstances as may be determined to reach the conviction that the perpetrator is aware of his activity of facilitating the dissemination of child pornography, including the degree of knowledge of the use of computer systems that the perpetrator has (STS 240/2020, of May 26, with mention of others).
Likewise, a disseminating result doesn’t need to be achieved. The mere possibility that it may occur is sufficient since we are, in this case, before a crime of simple activity that is fulfilled and consummated with the mere execution of acts that make possible the distribution of pornographic content.
Distribution and Possession of child pornography
In our criminal defense firm specializing in Child Pornography crimes, you will find the seriousness and professionalism that your case needs.
Possession or distribution of child pornography is the two most frequent conduct of this crime, being more serious the distribution of this material since, in addition to sharing or disseminating it, the responsible has it in his possession.
Anyone who distributes for sexual purposes pornographic material of minors or disabled persons in need of special protection, regardless of its origin, will be responsible for this crime.
The simple possession of such material is a crime, regardless of the origin of this illicit material.
The crime of possession of child pornography
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Possession is punishable by three months to one year of imprisonment or a fine of six months to two years.
To constitute the crime, the illicit material must be printed or recorded in any support, with the purpose of own consumption and without any intervention in the filming or commercialization.
It is also a requirement that the possession of the material has a minimum duration in time: fleeting possession, such as downloading and immediate deletion of a file, is not a crime. And in most cases, possession of a single pedophile file will not be considered illegal because of the high probability that the download was accidental. Police often target their investigations in cases where the fully downloaded files are more than one.
On the other hand, not all images or videos are considered child pornography. The jurisprudence finds that the mere image of a nude is not objectively pornographic material if it is accompanied by obscenity or lewd situations.
Pornography goes beyond the limits of the aesthetic, the erotic, and the ethical with the purpose of sexual provocation and the absence of literary, artistic, or educational value. In any case, the frontier between one and the other types is always tricky to establish and will be left to the free appreciation of the court.
It will also be necessary to prove that the accused was aware of having child pornographic material in his possession to be convicted of possession of child pornography. In many cases, the courts deduce this knowledge from indications such as the existence of numerous files or their classification in folders with names with pedophile references.
When you hire Esteban Abogados Penalistas to defend you against child pornography charges, you hire a highly experienced team of lawyers with a long history of success.
The crime of distribution of child pornography
The sale, distribution, exhibition, offering, and facilitation of child pornographic material is punishable by imprisonment from one to five years.
It is important to note that the unknown or foreign origin of the child pornographic material does not exempt from the crime.
The most common court cases are:
- The dissemination of illicit files through peer-to-peer programs such as eMule.
- The sharing of files with other users.
- The exchange of material in groups and chat rooms.
- The use of web pages with pedophile content.
The borderline between possession and distribution is automatic sharing via P2P programs, where downloaded files are shared with other users while on the system by default.
To avoid the disproportionality of being sentenced to a harsh prison sentence for distribution, instead of possession, for downloading a file with a bidirectional program such as eMule, the Supreme Court adopted an agreement on 27-10-99 by which it was established that it was necessary to avoid incurring in automatisms derived from the mere use of the software used to download the files. Therefore, analyzing the knowledge and intention to distribute in each case was necessary.
Since then, to be convicted of distribution of child pornography, it is necessary to have more circumstances than the simple download, such as the possession of a large amount of material in the program, participation in pedophile forums, the number of times it is shared, the structure of the terminal, the reception of the images or videos by other users, the degree of computer knowledge of the accused or the parallel acts of purchase and exchange.
The crime of distribution is aggravated, with penalties of up to nine years imprisonment, if the perpetrator uses minors under 13 years of age, acts in a degrading or humiliating manner, belongs to an organization dedicated to carrying out these crimes, or is a person in de facto or de jure charge of a minor or incompetent person.
Child pornography simulated by adults
According to Article 189, pornographic material is considered to be any material that visually depicts a person, who appears to be a minor, engaged in explicit sexual activity, as well as any depiction of the sexual organs of a person who seems to be a minor for sexual purposes.
Virtual child pornography
Due to the tremendous technological advances of today, virtual child pornography is the primary means of producing and distributing this pornographic material. This crime is becoming more and more frequent due to this very fact, the ease of obtaining and distributing child pornography. Virtual pornography, i.e., transmitted over the Internet and social networks, is one of the conducts covered by this crime since it includes pornographic material punishable by the Penal Code.
Penalties for the crime of Child Pornography
As Child Pornography Attorneys, we have a deep knowledge of the Law.
For the typical conduct of this crime, that is, production, facilitation, distribution, and possession of pornographic material of minors or persons with disabilities for sexual purposes, the penalty is one to five years of imprisonment.
Anyone knowingly attending pornographic exhibitions involving minors or persons needing special protection shall be punished with six months to two years imprisonment.
Those who possess or acquire for their use child pornography material shall be punished with a penalty of three months to one-year imprisonment or a fine of six months to two years.
Whoever has under his custody or guardianship a minor or a person with disabilities and who, knowing his state of prostitution, does nothing to put an end to this situation will be sentenced to a prison term of three to six months or a fine of six to twelve months, as well as the deprivation of the parental authority of the minor.
The following is a detailed summary of the type of penalties for the crime of child pornography:
Penalties of 1 to 5 years for child pornography:
According to article 189.1 of the Penal Code, the penalties for the crime of child pornography will be between 1 and 5 years when these circumstances concur:
a) Whoever captures or uses minors or disabled persons in need of special protection for purposes or in exhibitionist or pornographic shows, both public and private, or to produce any pornographic material, whatever its support, or finances any of these activities or profits from them.
b) Whoever produces, sells, distributes, exhibits, offers, or facilitates the production, sale, dissemination, or exhibition by any means of child pornography or in the elaboration of which disabled persons in need of special protection have been used or possess it for these purposes, even if the material has its origin abroad or is unknown.
Penalties of 5 to 9 years for child pornography
According to the penal code, the prison sentence for child pornography will be from five to nine years when any of the following circumstances occur:
(a) When minors under sixteen years of age are used.
b) When the facts have a particularly degrading or vexatious nature.
c) When the pornographic material represents minors or disabled persons in need of special protection who are victims of physical or sexual violence.
d) When the guilty party has endangered, in a fraudulent or grossly negligent manner, the life or health of the victim.
e) When pornographic material was of notorious importance.
f) When the guilty party belongs to an organization or association, even of a transitory nature, which is dedicated to realizing such activities.
g) When the person responsible is an ascendant, tutor, guardian, tutor, teacher, or any other person in charge, de facto, even temporarily, or de jure, of the minor or disabled person in need of special protection or any other member of his family living with him or any other person who has acted abusing his recognized position of trust or authority.
h) When there is an aggravating circumstance of recidivism.
Given these cases’ high stakes and complexity, if you face child pornography charges, consult a criminal defense attorney who accredits the experience and professionalism your case needs without delay. As expert criminal lawyers with a long trajectory in the courts, we know that the immediate action of the lawyer is decisive for the excellent resolution of these cases.
Mitigation of penalties for mental impairment
The system of the Penal Code in force requires not only the existence of a diagnosis that appreciates a psychic anomaly or alteration as a biological or pathological element but also the verification that such a deficit prevents the subject, or hinders, to a greater or lesser extent, the understanding of the unlawfulness of the conduct or acting in accordance with that understanding (psychological-normative element).
We must state that the jurisprudence itself has developed the so-called «mixed criterion,» «biological-psychological,» or also called in other areas «normative-psychological,» to establish that the detection of the anomaly was not always equivalent to the exemption from criminal liability, since for this two other equally essential elements were required, a consequence of the former, namely:
a) the affectation or severe limitation of some of the psychic faculties of the subject, that is, the cognitive or knowledge of the individual of the scope of the unlawfulness of his conduct and the volitional or free will to accommodate his behavior to that prior knowledge of the unlawfulness of the act he was carrying out; and
b) the «relationship of meaning» between the disease and its psychic consequences with the crime committed.
Thus, an accredited pathological basis, which in reality did not condition the psychological faculties referred to or which lacked a link with the specific field of human conduct to which the typical act referred, could not be taken into account from the point of view of the consideration of immutability.
This doctrine, of strictly jurisprudential creation in our Law, with the sole exception of the provisions contained in the Penal Code of 1928, which already followed the criteria of this mixed method, finds full acceptance today in the positive norm after the publication of the Penal Code of 1995 which, in the first three circumstances contemplated in its article 20, expressly includes the requirement that the proven permanent or transitory psychic anomaly or alteration (art. 20.1), the intoxication of psychoactive substances or withdrawal syndrome (art. 20.2) or alteration of perception (art. 20.3), it must be added, as a consequence, that the subject suffering from them «…cannot understand the unlawfulness of the act or act in accordance with that understanding» (art. 20.3). It must be added, as a consequence, that the subject who suffers from them «…cannot understand the unlawfulness of the act or act in accordance with that understanding».
Aggravating factors in the crime of Child Pornography
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There are a series of circumstances that can aggravate the penalties:
- When minors under sixteen years of age are used.
- When the facts have a particularly vexatious character.
- If the person responsible for the crime has voluntarily or involuntarily endangered the victim’s life.
- When the illicit material is of particularly notorious importance.
- When the person responsible belongs to an organization or association that engages in this activity.
- When the person responsible maintains any family or guardianship relationship with the victim and has taken advantage of his superiority to commit such acts.
- If the pornographic material depicts minors or persons in need of protection who are victims of physical or sexual violence.
- When the acts are recidivist.
If one or more of these situations are fulfilled, the penalty will be five to nine years of imprisonment. In addition, if for the recruitment or use of minors to produce pornographic material, violence or intimidation has been used, the penalties will be imposed to a higher degree.
Due to the high penalties involved in the crime of child pornography from Esteban Criminal Lawyers, we recommend you contact our office in Barcelona. As specialists in Child Pornography Defense, we will prepare the best strategy for your case to achieve the best results in court.