Can I be Convicted if a Computer Virus Downloads Child Pornography?

A child pornography case from 2009 recently gained the Internet’s intrigue due to its unusual circumstances. In the case, a Massachusetts man was charged with child pornography crimes after a virus infected his computer and downloaded large quantities of child pornography. The defendant was fired from his job after his employers found the pictures and videos on his state-issued laptop. He was also charged with a crime – facing five years in prison under his state’s laws – and faced serious personal threats and harms.

These kinds of internet crime cases are rare, but they do occur. There is always a possibility that you could be the victim of a virus, a computer hack, or a prank that could end with you facing years of prison, high fines, and registration as a sex offender. If something like this happens to you, it is important to understand your rights and to seek counsel from an experienced criminal defense attorney. The Atlantic City criminal defense lawyers at The Law Offices of John J. Zarych may be able to take your case and prove your innocence when you are framed for a sex crime in New Jersey.

New Jersey Child Pornography Laws

Under both state and federal laws, it is illegal to knowingly possess child pornography. New Jersey’s “endangering welfare of children” laws under N.J.S.A. § 2C:24-4 prohibit the production, sale, distribution, receipt, possession, and viewing of child pornography. Each subsection covers a different area of this.

  • Subsection (b)(3) prohibits having a child perform a sex act for the camera, and is a first degree crime.
  • Subsection (b)(4) prohibits photographing or recording child pornography, and is a second degree crime.
  • Subsection (b)(5)(a) prohibits the sale, transfer, etc. of child pornography, and is a second degree crime.
  • Subsection (b)(5)(b) prohibits knowingly possessing or knowingly viewing child pornography, and is a third degree crime.

This last section, § 2C:24-4(b)(5)(b), is the most likely to apply to the typical conduct one would expect for a child pornography charge: viewing or possessing the child pornography. This law does require that the defendant knowingly views or possesses the pornography, though – which is very important to the defenses associated with this crime.

New Jersey Child Pornography Defense Atorney

In order to understand the penalties for child pornography creation, distribution, and possession, it is important to understand New Jersey’s classes of crime:

  • A first degree crime is punished by 10 to 20 years in prison and fines up to $200,000. This is the highest class of crime.
  • A second degree crime is punished by five to 10 years in prison and fines up to $150,000.
  • A third degree crime is punished by three to five years in prison and fines up to $15,000.

These classifications and penalties put child pornography in the same class of crime as many other sexual offenses, including sexual assault (rape). Further, there might be required sex offender registration, which could follow you for years or for the rest of your life.

Virus Defense for Child Pornography Charges

The Massachusetts case highlights one of the underlying claims that many people try to use in child pornography cases, which is not always successful: “I didn’t know it was on my computer.” This defense does strike at the heart of the definition of the crime. Since the defendant must knowingly possess the pornography, if the defendant truly did not know the pornography was on their computer, it is not a crime.

There are many ways to attack the concept of knowingly possessing child pornography. Often, people will claim that the materials were someone else’s. This means making claims that their roommate, housemate, co-worker, or someone else with access to the shared computer must have put them there.

South Jersey Child Pornography Possession Defense Attorneys

The virus defense is a similar claim, but may produce a much stronger defense. On a computer infected with insidious malware like a virus, the computer can often come under the full control of another person – or follow automatic commands. In that scenario, another person may be downloading the pornography to the defendant’s computer to hide their own trail. Downloading the materials to another computer along the way may make the files harder for the authorities to trace, but it turns the defendant into an unknowing victim. Alternatively, a virus could be coded to have the computer automatically seek out and download files without any user involvement.

Proving a defense like this is often unsuccessful. Many times, there is other evidence that does still incriminate the defendant. These might include emails or other communications that prove the defendant was trading or selling materials, or external storage devices that prove the defendant copied or backed-up the files. Other times, while the virus may have downloaded some files without the defendant’s knowledge, there are other files the defendant did knowingly possess that are also illegal.

New Jersey Criminal Defense Attorneys

The Atlantic City sex crime defense lawyers at The Law Offices of John J. Zarych may be able to evaluate your case and help you put up the strongest defense available to you under the law. For a free, completely confidential consultation about your child pornography or other criminal charges, call our office today at (609) 616-4956.

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