What Constitutes Child Pornography Possession in NJ?

In New Jersey, like in the rest of the country, it is illegal to produce, possess, or distribute child pornography.  These crimes have serious penalties, but they also have sometimes vague or unclear limits.

Child pornography is generally considered to include any depictions of a child in a “sexually suggestive” way or performing actual sexual acts or simulated sexual acts.  The statute goes on to define some of these terms more specifically, including broadly any depiction that draws sexual attention to a child or is used to sexually gratify a viewer.  “Possession” under this law can include having physical items like photographs on you or at your home or digital items in a place you have access to, such as your phone or home computer.

If you were charged with possession of child pornography, call (609) 616-4956 for a free case review with the NJ child pornography defense lawyers at the Law Offices of John J. Zarych.

What Constitutes “Child Pornography” for Criminal Charges in NJ?

Various child pornography crimes are illegal in NJ under N.J.S.A. § 2C:24-4(b).  Subsection (a) of this statute deals with crimes that endanger a child’s welfare, and subsection (b) is split into various crimes of production, distribution, and possession of child pornography, as well as a definitions section that lays out what is and is not “child pornography” for these laws.

The core thing that is illegal to possess – what we normally call “child pornography” – is technically called an “item depicting the sexual exploitation or abuse of a child” under subsection (b)(1) of this statute.  This definition includes all of the following:

Type of Item

The statute specifically includes items like photos, videos, or files.  This essentially means that the item is illegal regardless of the form it takes.  The law also goes on to include any “reproduction or reconstruction,” which can include “computer generated images.”

For a picture, video, or other item to be “child pornography,” it needs to be a depiction of a real or simulated sex act, or it needs to portray the child in a sexual way.

Depictions of Sex Acts

If the picture or other item actually shows a child performing a sex act, then it is illegal.  The statute lists specific acts such as vaginal, anal, or oral intercourse.  It also refers to sadomasochistic acts.

Nudity itself does not automatically make something child pornography under this part of the definition, but it does if the nudity is for the viewer’s “sexual stimulation or gratification.”

The statute also specifically incorporates any acts referenced in another sex crime statute.  This means that depictions of illegal sexual touching are also illegal, even if done over the clothes.

“Sexually Suggestive Manner”

The alternative way that an image or other item can be deemed “child pornography” is if it depicts the child in a “sexually suggestive manner.”  This kind of illegal depiction occurs in three possible ways:

First, it is illegal to show a child’s “intimate parts” without “complete” and “opaque” covering.  This depiction must be enough to focus sexual attention on the child, so something like a naked baby photo should not be enough to trigger this law.

Second, it is illegal to show “contact” in “any form” with a child’s “intimate parts.”  Again, context is important, and the depiction must be enough to focus sexual attention on the child.  Thus, something like a diagram in a medical textbook should not violate this law.

Third, any other depiction made for “sexual stimulation or gratification” for a potential viewer would be illegal.  Here, there must also be a lack of “artistic value,” which is a common legal analysis used to distinguish “obscenity” from “valid” free speech in what is called the “Miller test.”

Who is Depicted

Since all of these restrictions are on items depicting children, it is important to determine how the law defines children.  These rules come primarily from N.J.S.A. § 2C:24-4(b)(6).

First, anyone under the age of 18 is a child, and it is not a defense that you did not know their age or actually thought they were over 18.  The law specifically blocks “reasonable” mistakes of age from making it legal, such as a situation where you were given a fake ID before filming the subject.

Second, the depiction is legally presumed to show someone under 18 if they are “depicted” or “present” that way.  This presumption is what is known as “rebuttable,” so there might be potential defenses, such as proof that the actual actor was over 18.

Third, this law presumes that any depiction of a person under 18 is child pornography.  This means that it does not matter if it is an animated character or a video game character; it is still illegal child pornography under NJ law.

What Constitutes “Possession” for Child Pornography Crimes in NJ?

Under most of the crimes contained in NJ’s child pornography statute, the illegal act in question is “possession” of the materials.  However, it is also illegal to distribute them, host them on a “file-sharing” program, or even view the items.  To prove that you illegally possessed the items, the government must show one of the following:

First, possession can be actual or constructive.  Actual possession means having the items on your person, such as a physical photograph or videotape.  Constructive possession means that you knowingly own the items in a place you have access to.  This means items in your car or at home in your closet are also in your possession.

Second, digital items are also in your “possession” under the same analysis.  If you have access to your phone, and the files are on your phone, you have possession.  Similarly, if you have access to a computer at home that you know contains child pornography, you would be deemed in possession of them as well.  If you discover files that are not yours on your computer, it is best to call a lawyer and report situations like this quickly to avoid being charged for knowing possession.

Lastly, the term “possess” is defined to include possession over the internet.  This means that having the files in your email or having access to them through a file-sharing or file-hosting site or program would be illegal, too.

Call Our Child Pornography Defense Lawyers in NJ Today

For a free case review, call the NJ child pornography defense attorneys at the Law Offices of John J. Zarych at (609) 616-4956.

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