Columbia and Charleston Defense Lawyer Handling Child Pornography Cases
Aggressive representation for South Carolina clients accused of possessing child pornography
There are certain criminal charges that carry a stigma with them, even when a person is acquitted of a crime. Accusations of crimes against children are almost always on that list. This is why you must seek aggressive, experienced counsel as soon as you can. The sooner you hire a defense lawyer, the sooner you can start mitigating the damage to your reputation and your future.
In South Carolina if you are accused of viewing child pornography on your computer, your family, friends and neighbors will see in a press release that you have been charged with “sexual exploitation of a minor“ leading them to believe that you have sexually assaulted a child.
Additionally, in almost every possession of child pornography case in South Carolina, the defendant is also charged with distribution of child pornography when the accused had no idea that they were unknowingly making their computer part of a distribution network. If convicted of this crime, the law says you must go to prison even if you have no prior record, no matter who you are.
At The Law Offices of A. Randolph Hough, P.A., we fervently believe in the Constitutional right to effective counsel. When you are facing criminal charges of any kind, no matter what types of charges they are, we zealously embrace our duty to uphold the Sixth Amendment and represent you to the best of our ability.
We understand exactly what you’re facing when you have been charged with viewing or possessing child pornography, what the State of South Carolina defines as “exploiting a minor” under its criminal code. We have represented clients in Columbia, Charleston, and throughout South Carolina who have been accused of downloading, distributing, creating, or selling child pornography. Don’t wait to contact Attorney Randy Hough if you have been accused or charged; he has successfully represented clients in and around the Lowcountry who were charged with sexual exploitation of a minor, helping to clear their names and avoid incarceration.
“Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
– Abraham Lincoln
How does South Carolina charge a person for child pornography?
South Carolina does not have a solitary “child pornography” charge. Instead, it has a series of statutes criminalizing “offenses against morality and decency.” Within the code, there are three primary charges you could face. We have listed the pertinent information here, but you can access the full statute for each code.
First degree sexual exploitation of a minor. SC Code § 16-15-395:
An individual commits the offense of first degree sexual exploitation of a minor if, knowing the character or content of the material or performance, he:
- uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity or appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;
- permits a minor under his custody or control to engage in sexual activity or appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation;
- transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity or appear in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation for a live performance or for the purpose of producing material that contains a visual representation depicting this activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation; or
- records, photographs, films, develops, duplicates, produces, or creates a digital electronic file for sale or pecuniary gain material that contains a visual representation depicting a minor engaged in sexual activity or a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.
Second degree sexual exploitation of a minor. SC Code § 16-15-405:
- An individual commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he:
- records, photographs, films, develops, duplicates, produces, or creates digital electronic file material that contains a visual representation of a minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation; or
- distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.
- In a prosecution pursuant to this section, the trier of fact may infer that a participant in sexual activity or a state of sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor.
Third degree sexual exploitation of a minor. SC Code § 16-15-410: “An individual commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation.”
The federal government also has laws against the possession, production, distribution, and sales of child pornography. The United States defines child pornography as “any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor.”
Penalties for exploitation of a minor
All three charges are felonies, which will result in incarceration.
- First degree: between 3 and 20 years in prison, without eligibility for parole until the minimum sentence has been fulfilled. If convicted on multiple counts, those sentences must run consecutively, not concurrently.
- Second degree: between 2 and 10 years in prison, without eligibility for parole until the minimum sentence has been fulfilled.
- Third degree: up to 10 years.
- Federal charges: Federal convictions often result in the defendant spending the rest of his life in prison.
Why you must have a lawyer when you’re facing child pornography charges
Child pornography cases are challenging and dangerous, and having an experienced criminal defense lawyer is the best chance you have at setting the record straight and hopefully avoiding prison. The collateral damage of a conviction can also include:
- Mandatory registration on the sex offender registry for the rest of your life
- Loss of professional licenses
- Loss of employment
- Loss of housing
- Loss of educational opportunities
- Loss of access to government assistance, including food assistance, housing assistance, and access to loans
- Loss of the right to carry a firearm
- Loss of reputation within the community
How the laws can lead to unintended consequences for your children
Under these laws, a high school senior who is “sexting” with a boyfriend or girlfriend can be legally charged with exploitation of a minor. An underage student who shares a nude selfie with another underage student could be charged with and convicted of sexual exploitation of a minor.
Our clients are often hardworking, upstanding people in their community. They love their families. They do their jobs. They get together with friends on the weekends. They mow their lawns and pay their bills at the kitchen tables, and take their children to movies.
In short, they are the men and women we all know as part of our community. And we consider it our duty to uphold the law and protect their rights.
The connection between BitTorrent, hackers, and child pornography charges
As more people “cut the cord” to their cable providers, the number of streaming services has exploded. Peer to Peer (P2P) file sharing programs like BitTorrent, uTorrent, WireShare and others break down pieces of files so you can access larger files – like movies – quickly, and often for free.
P2P file sharing is not necessarily illegal in and of itself. For example. NASA uses BitTorrent as a way to share its Visible Earth catalog. But this does not mean that all of your “peers” are good people, which means once you download the software, you are at the mercy of strangers to do the right thing. Much like you can accidentally download a virus or malware, you can also accidentally download child pornography.
This happens more often than you might think. A 2019 ProPublica investigation found dozens of incidents where child pornography detection programs have traced the presence of materials to a specific I.P. address, only to be unable to find the material on the computers themselves.
Additionally, your computer, smart phone or social media accounts can be hacked. Recently, we successfully employed this defense. An image appeared on our client’s social media site and by virtue of this social media site’s reach, the image was distributed throughout the world. Our client was charged with Sexual Exploitation of a Minor, 2nd Degree, and if convicted, he would have faced a mandatory prison sentence and lifetime registration as a sex offender. We were successful in convincing the government that our client’s account had been hacked, and his charges were dismissed prior to trial. Our client’s arrest was expunged and removed from his record.
The difference between pedophilia and child molestation
The frank truth is this: while individuals can often create scenarios in their minds that would make them empathetic towards the accused – even when those crimes include certain homicides, disputed allegations of whether sex was consensual or not, or other types of assault – it is very difficult for most people to find empathy for those charged with possessing child pornography. In their minds, a person who possesses this material is automatically a pedophile, which means he or she is automatically a child molester.
But this is not true. According to David Finkelhor, a professor of sociology and the director of the Crimes Against Children Research Center at the University of New Hampshire, “most child molesters are not pedophiles,” and generally speaking, “pedophiles constitute a minority of those who sexually abuse children, or who are child molesters.”
Pedophilia, as defined by the Merck Manual of Diagnosis and Therapy (MSD Manual), is a disorder “characterized by recurring, intense sexually arousing fantasies, urges, or behavior involving children (usually 13 years old or younger).” It is considered a type of paraphilia, a condition which manifests in abnormal sexual desires. Pedophilia is a documented disorder, not a crime.
Criminal sexual conduct with a minor is categorized by degrees in South Carolina, depending on the age of the victim. In all cases, however, the act involves sexual battery: “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.”
In short, child molesters commit physical sexual acts against children. Being diagnosed as a pedophile is not the same as physically sexually assaulting children. In fact, research shows that “Only a minority of sexual offenders against children are actually pedophilic; there is an unknown number of pedophiles who never commit abuse; and the occurrence of sexual abuse has very many causal contributors.”
Or, to use the plain language of the author, “pedophilia is not a synonym for child molestation.”
Prison terms don’t cure pedophilia
Prison cannot fix mental illness or neurological problems. Dr. James Cantor of the Centre for Addiction and Mental Health (CAMH) in Toronto says pedophilia is the result of prenatal brain development. Dr. Cantor and his team took MRIs of the brains of non-offenders and the brains of pedophiles. They found that “variations existed in the white matter tissue that connects all regions of the brain. There was significantly less of it in the brains of male pedophiles.”
There is no “cure” for pedophilia, just as there is no “cure” for any other mental illness; there is only therapy and medication to control the urges. In the U.S., the most common medications prescribed to pedophiles are medroxyprogesterone acetate and leuprolide, which effectively reduce testosterone. This is commonly called “chemical castration.”
Many therapists won’t work with pedophiles
It is incredibly difficult for non-offending pedophiles to get help in the U.S., due to something called the “courtesy stigma.” Doctors who work with and treat people for pedophilia often face “prejudice and discrimination” from others, which can leave those doctors reluctant to help.
Illegal police procedures in the quest to arrest suspects
There is much confusion about what police are and are not allowed to do in their goal of making an arrest. For example, during questioning, law enforcement officers are allowed to lie to you. They can tell you they have evidence when they do not. You may not have been read your Miranda rights – but depending on the circumstances, police can still question you and use your answers against you. In certain circumstances, they do not have to tell you this information. The government will argue in court that they do not have to tell you that you are free to leave at any time if you are not being officially detained.
All of these tactics are legal, and all of them can get you in serious trouble.
But there are laws and regulations governing what police and federal agents cannot do; if they engage in any of the following illegal procedures, your case may be dismissed entirely:
- Under the Fourth Amendment, they usually cannot search your home without a warrant or seize your property without probable cause
- They cannot deny you the right to an attorney once you have been arrested
- They cannot engage in acts of brutality
- They cannot say they have a search warrant when they do not
- They cannot plant evidence on you or in your home
If law enforcement engages in illegal behaviors or acts of misconduct, we may be able to have the evidence against you suppressed. Without evidence, the State’s or U.S. government’s case against you will likely fall apart.
Can child pornography charges be expunged or pardoned in South Carolina?
Typically, the only way to have South Carolina state court child pornography charges expunged from your record is to have the charges dismissed or to be found not guilty at trial. There are possible exceptions, especially for those who were charged as juveniles.
Pardons are available for South Carolina state court convictions of all types, including for possession of child pornography and “exploitation of a minor” convictions. Our office handles expungements and pardons; contact us to learn more.
Contact an attorney in Charleston or Columbia if you are facing child pornography charges
The U.S. Constitution guarantees all people the right to a fair and speedy trial before a jury of their peers. The Law Offices of A. Randolph Hough, P.A., takes that guarantee seriously. If you have been charged with the sexual exploitation of a minor, or accused of selling, distributing, producing, or possessing child pornography, we want to help. To schedule a consultation with criminal defense attorney Randy Hough, please call 803.771.4119 or 843.507.4558, or fill out our contact form.
We maintain offices in Columbia and Charleston, and serve clients throughout South Carolina, including those in Berkeley, Charleston, Dorchester, Richland, Lexington, Calhoun, Kershaw, Fairfield, Sumter, and Newberry Counties.