Trigger Warning: The content herein may be disturbing or triggering to people who have undergone sexual violence in the past.
Assaults, especially those of a sexual or violent nature, are considered a grave crime across the globe. But when one commits such an offence against a child, the severity of the offence rises to a whole new level. Abusing a child sexually is not only a crime in the eyes of the law but also the most disliked and loathed act in society.
For this reason, people accused of sexual offences against a child not only stand a chance of serious penalties, including fines, their name on the National Sex Offender Registry, and jail sentences, but also the threat of losing their stature in the neighbourhood. Not to mention the travel and professional restrictions that will haunt the individual for the most part of their life.
In this regard, one of the most serious types of offences is child pornography. Through our years of experience as sexual assault defence lawyers in Edmonton, we have come to realize that most people fall into this pit because they either don’t know what exactly child pornography is or, worse, do not know how to defend themselves against the charges.
As sexual assault defence lawyers who have handled numerous cases similar to the scenario depicted above, we believe one of the greatest strengths of an accused in such a case is their knowledge. If you know your act does not constitute child pornography or have any other valid defence, you can save yourself from the severe consequences of a conviction.
So in this blog post, we shall examine the legal definition of child pornography, the type of child pornography offences in Alberta, and some possible defences.
The Legal Definition Of Child Pornography (Section 163.1 (1))
Unlike popular perception, child pornography is not only about making or sharing nude images or videos of a child explicitly involved in sexual activity. It is wrong to assume that you only commit an offence if you make or distribute videos or images of children. In truth, the possession of such content for personal sexual motives is equally punishable by law.
According to the Criminal Code of Canada, child pornography is broadly defined as:
- Any photograph, film, or visual representation that depicts a person under the age of 18 engaged in explicit or implicit sexual activity, or
- The main characteristic of such a visual representation is a sexual organ of a person under the age of 18 years for a sexual purpose,
- Any audio, visual, or written content that encourages counsels, or advocates sexual activity with an individual under the age of 18,
- Any written or audio material whose main characteristic is the depiction of sexual or anal organs of a person under the age of 18 for a sexual pursuit.
Thus, child pornography is not only about recording or watching someone under the age of 18 engaged in a sexual act but also any audio or written material that encourages such acts.
Child Pornography Offences And Their Consequences In Alberta
From the above broad definition, we can break child pornography offences into four main categories for which you can face criminal charges:
The Making Of Child Pornography (Section 163.1 (2))
Any individual who produces, publishes, or prints child pornography as defined above is guilty of an offence and can receive a jail sentence for any period from one year to fourteen years. The imprisonment period depends on whether the Crown proceeds by summary or indictment.
The Distribution Of Child Pornography (Section 163.1 (3))
An individual that transmits, makes available, distributes, sells, advertises, imports, exports, or retains for the purpose of transmission, making available, distribution, sale, advertising or exportation of any type of child pornography commits an offence. The latter may result in imprisonment for a period between one to fourteen years.
Possession Of Child Pornography (Section 163.1(4))
This is the second most common form of child pornography offences. Most people only possess child pornography for personal sexual pursuit, not knowing that doing so also constitutes an offence. Possession here refers to physical control over pornographic material, such as having it on your computer or any storage device.
If the Crown proceeds by indictment, your likely jail sentence could be anything between one year to ten years. In the case of a summary conviction, the crime would result in anything between six months to about two years of imprisonment.
Accessing Child Pornography (Section 163.1(4.1))
This offence is the most common one. Most people think downloading pornographic material involving a child is not a big deal. However, downloading or accessing child pornography through the internet is just as bad as physical possession. Thus, the punishments are almost the same.
Possible Defences For Child Pornography Offences
If you are facing criminal charges for child pornography, your best course of action is to involve a sexual assault defence lawyer to attain the best criminal defence services. The lawyer will not only advise you on the strongest defence in your case but will execute a strategy to protect your interests.
The most common defences in this regard include:
- The legitimate purpose behind the act was for the administration of justice or to science, medicine, education or art, and it did not threaten or pose harm to a person under the age of 18.
- Innocent possession or access such as a pop-up or spam email.
- Illegally obtained evidence.
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