Randall & Stump, PLLC

Criminal Defense of Child Sex Crimes - It wasn't me, it was a Computer Virus

Today, and for good reason, child sex crimes are some of the most severely punished criminal offenses in both State and Federal Court. 

Imagine surfing the Internet at home and all of the sudden you hear a knock at the door. When you open the door you are greeted with the flashing of badges and the cold steel of handcuffs around your wrists as you are marched out of your house and in to the back of a squad car. When you arrive at the police station you are confronted by investigators about the endless amount of child pornography that has been downloaded on your computer. You know for a fact that you are not the one responsible for the images. If you aren't the offender, who is?

When you think about a computer virus attacking your computer, what consequences come to mind? You may immediately think of the possibility that your computer may crash or at worst certain aspects of your identity may be stolen. With the constant advancements in technology there is a new threat that computer viruses pose. Today, we must also be concerned with the possibility that the virus was placed on your PC, by a pedophile, so that he or she can upload child porn on to your PC and view it while your computer is online.

Being charged with possessing child porn can ruin your reputation, your life, your family's life and burden you with very large legal bills. If convicted, possessing child porn can deprive you of your freedom for several years or for life if you are required to register as a sex offender.

The motives for one to infect another's computer may vary. It could be that the person who creates the virus is in fact a pedophile and their goal is to download child porn on to your computer and view the porn stored on your computer when your computer is online. This allows the pedophile to view the child porn remotely and never have it traced back to their computer. The motive may also be that someone wishes to frame you to make it look like you frequently surf such illegal websites. Either way, the result is the same; YOUR reputation and freedom hang in the balances.

Recent cases demonstrate the various possibilities of how one's computer may be infected by such a virus.

Michael Fiola, a former investigator with the Massachusetts agency that oversees workers' compensation was recently charged with possession of child pornography after his superiors became suspicious of the Internet bill on his work laptop. When a technician took a look at Fiola's laptop, he found child porn in the folder that stores images viewed online. Fiola was fired from his job and charged with possession of child porn. Fiola spent around $250,000 on legal fees. An inspection of the computer done at the request of his attorney showed that the computer was severely infected. The virus was programmed to visit forty child porn sites per minute--something that is not humanly possible. Prosecutors performed a subsequent test of the hard drive and after the test confirmed the defense's findings, the charges were dropped eleven months after they were filed.

This same threat began to rear its head in the United Kingdom. In the first publicly known cases, two men in the U.K. were cleared of charges after it was shown that viruses were responsible for the child porn found on their computers. In one case, a virus infected email or pop-up ad caused child porn to be downloaded on a defense contractor's personal computer. In the other case, a virus caused the homepage of a man's computer to be changed to a child porn website, which was discovered by his seven year old daughter. The man over a week in prison, three months in a halfway house and lost custody of his daughter.

If you are ever confronted with such a situation, your only option is an experienced attorney who is going to fight for your freedom and good name.

In mounting a defense, you are going to need an attorney who is going to take every measure to ensure the best possible defense is prepared on your behalf.

Possibly the most important measure that an attorney should take is hiring a forensic expert to do an examination of your hard drive, separate and apart from the prosecution's expert.

A good forensic expert will look at both how the images got on the hard drive and who is responsible for putting them there. It is important that the expert look at the totality of the evidence and not just the fact that the images are on the hard drive. Some important questions the expert should ask are 1) was the accused even at the computer at the time the images were downloaded and 2) how long did it take for the collection of images to be collected. In reality, a person who collects child porn does so over a significant period of time and forensic investigation should reveal that.

In many cases, it seems that police investigators moved too quickly without conducting the proper investigation. It seems as though some agencies are satisfied with finding the material on the computer and then jumping to conclusions without exploring other possibilities. This again shows the importance of an expert investigation done separate and apart from the police investigation. A good investigation done by a defense expert will look for exculpatory evidence to see if there are other explanations for the child porn being on the computer.

In every case, the prosecution will need to prove that the defendant knowingly and intentionally possessed, received, or distributed child pornography. This starts with the burden of proving that the images found are in fact child porn and ends with the burden of proving that the individual charged is in fact responsible for the images being on the computer. If the images on the computer are in fact child porn, it is crucial that you hire an experienced attorney to ensure that every avenue will being explored, through his independent investigation, to show that you were not the person responsible for downloading the images.

The best way to protect yourself is to ensure that your computer is protected against any intrusions by viruses and malware. Ways to ensure this are 1) to be sure that the programs and operating software are up-to-date, 2) to be cautious of links that you click on and e-mails that you open and 3) to be sure that the virus protection software you use is up-to-date, which may include paying for the newest subscription. However, if you are investigated and/or charged, the best way to protect yourself is to ensure that you have an experience attorney to ensure that best possible defense is argued on your behalf. While attorney fees may be daunting for a case of such nature, remember that your reputation and freedom DO NOT have a price. Once they are gone, there is no getting them back.

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