Child pornography is a serious crime in Maryland, and those convicted of this offense can face harsh penalties, including imprisonment, fines, and registration as a sex offender. If you have been accused of possessing, distributing, or producing child pornography in Maryland, you may be wondering if there are any affirmative defenses for child pornography that could potentially help you avoid conviction.

In this blog post, we will discuss some of the affirmative defenses that may be available in Maryland for criminal child pornography charges. However, it is important to note that each case is unique, and whether or not a particular defense applies will depend on the specific circumstances of your case.

Affirmative Defenses to Child Pornography Charges

1. Lack of knowledge or intent

One possible defense to a child pornography charge is to argue that you did not know that the materials in question contained images of minors engaged in sexual activity. In order to prove that you possessed or distributed child pornography, the prosecution must demonstrate that you had knowledge of the illegal content. If you can demonstrate that you did not know that the materials contained illegal content, you may be able to avoid a conviction.

Similarly, you may be able to argue that you did not intend to possess or distribute child pornography. For example, if you received an unsolicited email containing illegal images and immediately deleted it, you may be able to argue that you did not intend to possess child pornography.

If you discover that you have accidentally downloaded images that contain child pornography, Maryland law carves out two specific defenses 1) You immediately delete the discovered image(s); and/or 2) You report the images which were unintentionally downloaded.

2. Entrapment

Entrapment occurs when a law enforcement officer induces a person to commit a crime that they would not have otherwise committed. If you can demonstrate that you were induced to commit a child pornography offense by law enforcement officers, you may be able to argue that you were entrapped.

However, it is important to note that entrapment is a difficult defense to prove. In order to successfully argue entrapment, you must demonstrate that you would not have committed the offense if not for the actions of the law enforcement officers.

3. Mistake of fact

If you can demonstrate that you made an honest mistake of fact that led to your possession or distribution of child pornography, you may be able to argue that you did not have the requisite intent to commit the offense. For example, if you were under the impression that the individuals depicted in the materials were over the age of 18, you may be able to argue that you did not knowingly possess or distribute child pornography.

However, it is important to note that a mistake of fact defense can only be successful if the mistake is reasonable under the circumstances. If you were reckless or negligent in your acquisition or distribution of the materials, this defense may not be available to you.

5. Constitutional defenses

There are a number of constitutional defenses that may be available in child pornography cases. For example, you may be able to argue that your Fourth Amendment rights were violated when law enforcement officers obtained the materials in question. Similarly, you may be able to argue that your Fifth Amendment right against self-incrimination was violated during your interrogation.

Additionally, the First Amendment may be relevant in certain child pornography cases. For example, if you were in possession of materials that depict minors in non-sexual contexts, you may be able to argue that the materials are protected by the First Amendment.

If you have been charged with a child pornography offense in Maryland, it is important to consult with an experienced criminal defense attorney as soon as possible. Your attorney can help you determine which affirmative defenses may be available in your case and can work to develop a strong defense strategy that will help you achieve the best possible outcome. While there is no guarantee of success in any criminal case, having a skilled criminal defense attorney is crucial to a successful outcome.

At Craig M. Kadish & Associates, LLC we have been handling child pornography cases, both State and Federal, for Four (4) decades, and we would be happy to assist you or your loved one. Contact us today to schedule your free consultation.