Common Crimes
Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
Possession of Child Sexually Abusive Material (“Child Pornography”)
Statute: MCL 750.145c(4)
Crime Group: Person
Sentence Class: F
Minimum Sentence: 0 Months
Maximum Sentence1: 48 Months (4 Years)
Jury Instructions: No Standard Jury Instruction
Sex Offender Registration Required: Yes
Statutory Language:
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(4) A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This subsection does not apply to any of the following:
(a) A person described in section 7 of 1984 PA 343, MCL 752.367, a commercial film or photographic print processor acting under subsection (8), or a computer technician acting under subsection (9).
(b) A police officer acting within the scope of his or her duties as a police officer.
(c) An employee or contract agent of the department of social services acting within the scope of his or her duties as an employee or contract agent.
(d) A judicial officer or judicial employee acting within the scope of his or her duties as a judicial officer or judicial employee.
(e) A party or witness in a criminal or civil proceeding acting within the scope of that criminal or civil proceeding.
(f) A physician, psychologist, limited license psychologist, professional counselor, or registered nurse licensed under the public health code, 1978 PA 368, MCL 333.1101 to 333.25211, acting within the scope of practice for which he or she is licensed.
(g) A social worker registered in this state under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, acting within the scope of practice for which he or she is registered.
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Discussion:
Although the words “child pornography” (or, as it is called under Michigan law, “Child Sexually Abusive Material” or “CSAM”) often conjure up images of a creepy, seedy-looking old man looking at lewd images of underaged girls, these charges can be brought in any number of contexts. These charges have been brought where a person downloading adult pornography inadvertently downloaded child pornography, where a 17-year-old boy had nude photos on his phone that his 16-year-old girlfriend texted him (so-called “sexting” cases), where a high school boy hid a camera in the girl’s locker room as a prank, and where a parent surreptitiously videotaped a teenage daughter having sex with her boyfriend to confront her with it. Regardless of the circumstances, each of these cases had the potential for severe consequences.
There are very few charges more serious than that of possession of child pornography. By simply bringing this charge, a prosecutor can ruin a defendant’s life; even without a conviction, the defendant can (and usually does) have his/her children taken away by Child Protective Services, be ordered to stay away from all children (and sometimes even computers, even for work), be subjected to a battery of physical and psychological tests, lose his/her job, and be regarded in the community as a “pervert” and a “bad person”. Even if the defendant wins at trial and is acquitted, the stigma remains . . . and his/her children still may not be returned. If convicted, the defendant will be placed on the publicly-available register of sex offenders for at least 15 years, will almost certainly have his/her parental rights terminated (even if the allegations have nothing to do with the defendant’s children), be ordered not to have any contact with any minors (including the defendant’s own children), be subjected to a minimum of five years of harsh probation terms (including, frequently, a total ban on using computers of any type, including smart phones), and a permanent felony record that can not be expunged. Incarceration is almost a certainty upon conviction—even for a first-time offender—and a prison sentence is likely. Police agencies often confiscate thousands of dollars in electronics and/or other property and never return them, even after charges are dropped or the defendant is exonerated at trial. Clearly, the stakes are obviously very high, and these cases must be taken extremely seriously. They are also time-consuming and very expensive to defend against, especially since most cases of this type involve computers and require forensic computer experts to examine the evidence and testify at trial.
Most defendants who are charged with Possession of CSAM are also charged with two other felonies: Distribution of Child Sexually Abusive Material (MCL 750.145c(3)) and Using a Computer to Commit a Crime (MCL 752.796). The “Distribution” charge carries a maximum sentence of 7 years in prison and a fine of $50,000.00, and is usually charged when the defendant is alleged to have obtained the materials through internet chat rooms or peer-to-peer networking. “Using a Computer to Commit a Crime” has a flexible maximum sentence, depending upon the underlying charge. In the context of a Possession of CSAM case, the maximum sentence for the “Using a Computer to Commit a Crime” charge is seven years. Significantly, in the event of a conviction, the court may order the sentence for this charge to be served consecutively. In other words, instead of the sentence for the underlying Possession of CSAM sentence running at the same time as the sentence for the “Using a Computer to Commit a Crime” charge, the defendant would not start serving time on the second charge until the sentence on the first charge had already been completed. This can more than double the potential sentence in the case.
For the prosecution to convict a person of Possession of CSAM, they must prove all of the following:
- The defendant possessed, or sought and accessed, images or sound recordings of a child engaged in sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity;
- The defendant knew (s)he possessed the material, or intentionally sought out and accessed material of this nature;
- The defendant knew or had reason to know that the material depicts a child, or did not take reasonable precautions to determine the age of the child.
While this sounds fairly straightforward, there are a number of details that complicate these cases and frequently form arguments for the defense:
- First, this charge only applies to “images” and “sound recordings” of children being sexually abused. MCL 750.145c(1)(o). Digital photographs, paper photographs, movies, electronic movie files, and audio recordings all qualify, but “written word” descriptions (including sound recordings of “written word descriptions”) do not. In other words, having a copy of Vladimir Nabokov’s Lolita or William Shakespeare’s Romeo and Juliet or a recording of Meatloaf’s “Paradise by the Dashboard Light” is not illegal, even though they all describe children under the age of 18 engaging in sexual activity.
- This charge applies only to images of actual children. Although the language of the statute purports to apply the law to material that “appears to include a child” but was “not created using a depiction of any part of an actual person under the age of 18” (MCL 750.145c(1)(b)), a nearly identical provision of federal law was struck down by the United States Supreme Court as being overly-broad. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court pointed out that child pornography laws are intended to protect children from being the victims of sexual abuse, and that laws prohibiting materials that “appear to” show people under the age of 18 engaging in sex acts “prohibit[] speech that records no crime and creates no victims by its production.” Id., 250. In other words, films like American Beauty and Romeo + Juliet would be considered “child pornography” under these statutes because they “appear” to show children (defined as anyone under age 18) engaging in sex acts. Thus, cartoons and computer-generated images of people who never existed (even images of imaginary children) are not subject to prosecution. (In fact, some people who are under the age of 18 may be depicted in pornography without running afoul of Michigan’s CSAM law; if the images are of a minor who is emancipated, then possession of those images does not violate the law. MCL 750.145c(6). Why? Because an emancipated minor is considered an “adult”, and as such, the production and distribution of the images does not create a child victim of sexual abuse.) The statute even includes a provision under which the defendant’s counsel is required to notify the prosecution if this defense it to be raised. MCL 750.145c(7).
- The activity displayed has to be, at a minimum, “erotic nudity”. It is a common fear among many people that traditional pictures of a naked baby in a bathtub can lead to criminal charges for “possession of child pornography”. This is simply not true; the statute itself defines “erotic nudity” as “lascivious exhibition of the genital, pubic, or rectal area of any person” and goes on to define “lascvisious” as “wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.” MCL 750.145c(1)(h). “[I]nnocent child nudity” does not run afoul of the law. People v Riggs, 237 Mich App 584, 593; 604 NW2d 68, 73 (1999).
- The defendant has to “know” or “have reason to know” that the images are of a person under the age of 18. Thus, a person who possesses a photograph of a person who appears to be 30 years old to a reasonable person is probably not going to run afoul of the law if it turns out the person depicted is actually 15. There are exceptions, of course; if, in the prior example, the defendant had personal knowledge of the person’s age or obtained the images from a website that promoted itself as a “teen porn” site, then the knowledge element of the charge is probably met because the defendant had “reason to believe” the person depicted was a minor.
- There must be an intent to possess or access CSAM. A person who accidentally runs across child pornography while surfing the world wide web for something else—even “legitimate” adult pornography—does not violate the law. “[A] person [who] accidentally views a depiction of child sexually abusive material on a computer screen . . . does not ‘knowingly possess’ any child sexually abusive material in violation of MCL 750.145c(4).” People v Flick, 487 Mich 1, 19; 790 NW2d 295, 305 (2010). This can be tricky, however, because if a person runs across this material accidentally and then prints it, saves it, or does anything with it other than undertake efforts to remove it from the screen, the “accident” can be converted into “intent”.
- “Possession” can be “actual possession” or “constructive possession”. A person has “actual possession”, of course, if (s)he has a physical photograph. “Constructive possession” is a bit trickier, but essentially involves the ability to access the material and “exercise dominion or control” over it. Id., 13. Courts have found, for instance, that merely having a subscription to an internet site that distributed child pornography was sufficient to establish “constructive possession” of those materials. Id., 16. “Possession” can also include electronic files, including browser cache files.
- There has to be evidence beyond a reasonable doubt that it was the defendant who possessed or accessed the materials. This is easy in a case where police search an apartment inhabited by a single person and find photographs containing CSAM in the closet. It becomes trickier when the allegations involve downloading child pornography onto a computer that is used by several people, especially if they all share a single account on that computer; if five people all accessed the same computer and the prosecutor can not establish which one of those people knowingly accessed the offending materials, then there is insufficient evidence that the defendant was the one who committed the crime and the jury can not convict.
- The defendant must actually know the material is in his/her possession (or must know that (s)he is accessing it). A person who borrows someone else’s USB drive is not guilty of Possession of CSAM, even if there are hundreds of images of child pornography on the drive, if (s)he had no idea the images were there. The same applies to someone who buys a used hard drive at a swap meet or who borrows a briefcase; unless the defendant knew the material was there, the defendant can not be convicted of possessing CSAM.
These issues merely scratch the surface. To make things even more complicated, federal law dictates that defense counsel (and defense counsel investigators) can only access alleged CSAM evidence under very strict conditions that often make it difficult to properly review the evidence. Police investigators also jump to conclusions and frequently lack the necessary expertise to understand why material—especially material found on a computer—may not be evidence of possession of CSAM at all. Judges are often even less knowledgeable about these issues than police, and can be difficult to deal with as a result.
The availability of plea agreements on these cases varies greatly, depending on the facts of the case. It is common for prosecutors to threaten to “refer this to the feds” if the defendant does not simply plead guilty to all of the charges. These tactics are typically empty threats; federal prosecutors tend to focus on large cases involving the distribution of large quantities of child pornography and will usually decline to take over state cases involving a few images. It is uncommon, however, for prosecutors to agree to any plea deal that does not involve sex offender registration, even in relatively innocent circumstances (such as “sexting” cases).
In some cases, where a defendant is older than 17 years of age but less than 21 years of age at the time of the offense (or between 21 and 24 years old with the consent of the prosecutor), (s)he may be eligible for the Holmes Youthful Offender Act (HYTA) (MCL 762.11). HYTA allows for a deferred judgment, meaning that a defendant will receive the status of “youthful trainee” and put on probation. Upon a successful completion of the probation, all charges will be dropped and no public record of the charge will appear. If the defendant does not successfully complete probation, a conviction will enter without a trial and the defendant is re-sentenced. A HYTA probation may require jail or even prison time. It should also be noted that a defendant who offers a plea under HYTA will still be required to register as a sex offender, although it is likely that the registry will be non-public.
A defendant convicted under this statute will typically be sentenced according to the Michigan sentencing guidelines. Because these guidelines consider both the nature of the current crime and the past record of the defendant—and because the guidelines are “advisory only” and judges are not required to follow them—it is impossible to predict a likely sentence without taking a look at the specific facts of a defendant’s case and reviewing the past record of a defendant, and even then such predictions are an “educated guess” at best.
1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 72 months (6 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 96 months (8 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of 15 years.
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