Knowing Possession of Child Pornography Virginia
According to Virginia Law, § 18.2-374.1:1, a person can be convicted of possession of child pornography if it is proved beyond a reasonable doubt that they knowingly possessed child pornography. According to the Virginia Code, § 18.2-374.1, “child pornography” means sexually explicit visual material which utilizes or has as a subject an identifiable minor.
Essential to a conviction is the prosecution’s burden to prove “knowing possession” of the prohibited material. This is really two distinct elements: the prosecution must prove both possession and that the defendant knew he possessed the material.
As in most drug offenses, the possession element requires that the defendant have “dominion and control” over the material. It is insufficient that the defendant knew that the prohibited material existed. (It is not a crime to know that someone else possesses child pornography.) The prosecution must prove that the defendant possessed it. In most cases, this means that a computer must belong to the defendant and he must have access to it and control its operation in a manner that permits him to access the prohibited material.
The “knowing” element requires proof that the defendant knew that the material depicted a person less than 18 years old in a sexually explicit manner and that he knew that he had dominion and control over the material. Often this means that the defendant must know the material was on his computer and that it was, in fact child pornography. In the case of Commonwealth v. Gardner in 2007, the prosecution proved this because when questioned about child pornography on his computer, the defendant said “I don’t have too much.”
Considering all of this, it is not enough for the prosecution to prove that child pornography was on the defendant’s computer. They must prove that the defendant knew it was on his computer and that it was child pornography. A skillful lawyer will require that the prosecution be able to prove each and every element of the offense. No essential evidence should be skipped or presumed.
If you, or someone you know, has been charged with possession of child pornography in Virginia and are concerned about the consequences, you need to talk to a lawyer who has experience in this field and is supported by a law firm with the resources to mount an effective defense. If you even think you may be charged with any such offense, you should seek the assistance of counsel at first opportunity.
ABOUT THE AUTHOR: Atchuthan Sris
Atchuthan Sris is a Virginia lawyer who regularly defends clients charged with sex crimes in Federal and State Court.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.