Where is possession of child pornography prohibited in the Virginia Code?
In Virginia, possession of child pornography violates Virginia Code Section 18.2-374.1:1. That statute provides:
A. Any person who knowingly possesses child pornography is guilty of a Class 6 felony.
B. Any person who commits a second or subsequent violation of subsection A is guilty of a Class 5 felony.
C. Any person who (i) reproduces by any means, including by computer, sells, gives away, distributes, electronically transmits, displays with lascivious intent, purchases, or possesses with intent to sell, give away, distribute, transmit, or display child pornography with lascivious intent or (ii) commands, entreats, or otherwise attempts to persuade another person to send, submit, transfer or provide to him any child pornography in order to gain entry into a group, association, or assembly of persons engaged in trading or sharing child pornography shall be punished by not less than five years nor more than 20 years in a state correctional facility. Any person who commits a second or subsequent violation under this subsection shall be punished by a term of imprisonment of not less than five years nor more than 20 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
D. Any person who intentionally operates an Internet website for the purpose of facilitating the payment for access to child pornography is guilty of a Class 4 felony.
How does Virginia define “child” pornography?
Section 18.2-374.1:1 (F) provides guidance on what consitutes child pornography in Virginia:
...[I]t may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.
How do the Courts define “Possession?”
Whether someone is in "possession" of child pornography can be a very fact specific analysis, and will need to be analyzed in each case. However, Virginia courts have provided some guidance:
In Kromer v. Commonwealth, 613 S.E.2d 871 (2005), the court found that possession requires a finding that the defendant intentionally sought out and viewed child pornography on the Internet, knowing that the images would be saved on his computer. It, however, did not require that the defendant actually originally downloaded the images.
To be charged with an enhanced Class 5 Felony of Child Pornography, the Papol v. Commonwealth, 754 S.E.2d 918 (2014) Court found that possessing multiple images during a single download was sufficient for a second or subsequent violations, rather than only a single conviction.
What’s the difference between a Class 5 Felony and a Class 6 Felony?
Virginia Code Section 18.2-10 (e) & (f) define Class 6 and Class 6 Felonies:
For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
Does a conviction for Possession of Child Pornography require registration on the Sex Offender Registry?
Yes, those convicted of possession of child pornography are required to registered as a sex offender under Virginia Code Section 9.1-902. Required placement under the Sex Offender Registry is a very serious punishment that places many restrictions and burdens on individuals that will effect them for the rest of their lives.
For FAQs about the Virginia Sex Offender Registry, you can click here.
If you are charged with possession of child pornography, you must seek legal counsel immediately. Child pornography charged bring with them some of the most strenuous sanctions that can be imposed. Therefore, seek guidance immediately.