What is Possession of Child Pornography in Virginia?
Pursuant to Virginia Code § 18.2-374.1:1(A) and (B), it is a crime to knowingly possess child pornography. This article outlines the legal elements, possible penalties, and common defenses associated with possession charges in Virginia.
Understanding the Elements of the Offense
According to Virginia Model Jury Instruction No. 29.410, the Commonwealth must prove beyond a reasonable doubt that the defendant knowingly possessed child pornography. Though the statement is simple, its legal interpretation is more complex.
What Does It Mean to “Knowingly Possess”?
The term "knowingly" implies that the accused was aware of the presence and nature of the material. Virginia Code § 18.2-374.1:1(F) allows the fact finder (judge or jury) to infer the age of the depicted person based on context, text, title, or appearance, even if the identity is unknown.
This means prosecutors do not need to prove the subject's actual age but may rely on circumstantial evidence to show the depicted person appears under 18. See Coleman v. Commonwealth, Record No. 0096-16-3, at *2 (Va. Ct. App. Dec. 17, 2016) (citing Terlicki v. Commonwealth, 65 Va. App. 13, 20 (2015) (“We have no evidence as to the identities of the individuals in the images, and thus the jury was left to infer their ages from other evidence.”)
Actual vs. Constructive Possession
To be convicted, a person must possess the material, either actually or constructively:
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Actual possession refers to physical control (e.g., the material is found on the person).
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Constructive possession means the person had dominion and control over the material, even if it was not on their person. Courts examine factors such as access to the device, incriminating statements, and circumstantial evidence.
For example, in Terlecki v. Commonwealth, 65 Va. App. 13 (2015), the court upheld a conviction based on evidence that the defendant admitted to using images on his laptop for sexual gratification, despite other individuals having access to the device.
Multiple Images, Multiple Charges
Possession of each image or video file constitutes a separate offense. The Virginia Court of Appeals in Papol v. Commonwealth, 63 Va. App. 150 (2014), confirmed that prosecutors may charge multiple counts based on the number of visual items possessed.
This structure also allows the Commonwealth to pursue a combination of first and second/subsequent charges within the same case, even without a prior conviction.
Penalties for Possession of Child Pornography in Virginia
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First Offense (§ 18.2-374.1:1(A)): Class 6 felony
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1 to 5 years in prison, or
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Up to 12 months in jail and/or a fine up to $2,500 (if tried without a jury)
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Second or Subsequent Offense (§ 18.2-374.1:1(B)): Class 5 felony
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1 to 10 years in prison, or
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Up to 12 months in jail and/or a fine up to $2,500
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Sex Offender Registration Requirements
Convictions under § 18.2-374.1:1 require registration on Virginia's Sex Offender and Crimes Against Minors Registry. A first-time offender typically faces a 15-year registration period. Lifetime registration may be imposed if there are multiple convictions. Removal requires petitioning and court approval.
Legal Defenses to Possession Charges
Defending against possession of child pornography charges requires skilled legal strategy. Common defenses include:
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Lack of knowledge or intent
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Lack of dominion or control over the material
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Mistaken identity
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Illegal search and seizure (Fourth Amendment violations)
Speak to a Northern Virginia Child Pornography Defense Lawyer
If you're facing charges in Fairfax County, Loudoun County, Arlington, Prince William, or the City of Alexandria, cconsult an experienced criminal defense attorney.
Attorney Stephen D. Hall is a former Fairfax County prosecutor with extensive experience handling internet crimes against children. As a defense lawyer at Bezilla & Hall, PLLC, Mr. Hall represents clients charged with child pornography, computer solicitation, sexting, indecent liberties, and related offenses.
Contact Stephen D. Hall at (703) 719-8885 or R. Tyler Bezilla at (703) 705-3884 for a confidential consultation.
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Disclaimer: This content is for informational purposes only and does not constitute legal advice. Always consult with a licensed attorney about your specific case.