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What Are Child Sexually Abusive Material Charges in Michigan?

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Child Sexually Abusive Material Charges Michigan
In Michigan, Child Sexually Abusive Material charges can get you up to 20 years in Prison and fined $100,000.00, depending on the circumstances.

Michigan law is extremely harsh on those allegedly possessing, distributing, or producing what our law defines as "child sexually abusive material" or engaging in "child sexually abusive activity." Generally speaking, charges of Child Sexually Abusive Material under MCL 750.145c in Michigan involve making, distributing, or having child pornography.

Possession: A person who knowingly possesses or knowingly seeks to access Child Sexually Abusive Material is guilty of a felony and can be sentenced to Prison for up to 4 years or a fine of not more than $10,000.00, or both.

Distribution: A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promotion, or conspires, attempts, or prepares to distribute, receive, finance, or promote any Child Sexually Abusive Material or Child Sexually Abusive Activity is guilty of a felony and can be sentenced to Prison for up to 7 years, or a fine of not more than $50,000.00. However, this is only true if you know, have reason to know, or should reasonably be expected to know:

  • that the child is a child; or
  • that the Child Sexually Abusive Material includes a child; or
  • that the depiction constituting the Child Sexually Abusive Material appears to include a child; or
  • that person has not taken reasonable precaution to determine the age of the child.

Production/Creation: A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a Child Sexually Abusive Activity for the purpose of producing any Child Sexually Abusive Material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any Child Sexually Abusive Activity or Child Sexually Abusive Material for personal, distributional, or other purposes is guilty of a felony. They can be sentenced to Prison for up to 20 years, or a fine of not more than $100,000.00, or both. Again, this only applies if you know, have reason to know, or should reasonably be expected to know:

  • that the child is a child; or
  • that the Child Sexually Abusive Material includes a child; or
  • that the depiction constituting the Child Sexually Abusive Material appears to include a child; or
  • that person has not taken reasonable precaution to determine the age of the child.

Child Sexually Abusive Material charges in Michigan are considered Sex Crimes, because they have many of the same general attributes of the four main degrees of Criminal Sexual Conduct (CSC 1, CSC 2, CSC 3, and CSC 4). For example,being convicted of Possessing, Distributing, or Producing Child Sexually Abusive Material results in being forced to register as a sex offender on the Michigan Sex Offender Registry, most likely for a period of either15 years ("Tier 1") or25 years ("Tier 2"), depending.

DON'T TALK TO THE POLICE! If you are accused of a crime involving child pornography, the Police will immediately attempt to catch you off-guard and get an incriminating statement or confession from you. In fact, in child pornography cases, it is very likely that you are or have been investigated by the FBI. The Police or FBI will lie to you and tell you that they want to help you, or that you "coming clean" will help your case or reduce the penalty. This is NOT TRUE. Under the Rules of Evidence, you cannot use your own statement to show your innocence, and any incriminating statement will not be used to get you less time; it will be used to justify locking you up and throwing away the key.

RELATED: Should I take a Polygraph if I'm accused of having Child Pornography?

Even when you think you're helping, you're probably signing your own Arrest Warrant. The Police and FBI will twist your words, so even the truth of what you said can become irrelevant. By the time you open up your mouth, you're already EXERCISE YOUR RIGHT TO REMAIN SILENT. Never call a Police Officer, Detective, or FBI agent back! The first and only person you should ever discuss this matter with is a highly skilled Michigan Sex Crimes Defense Attorney.

As an example of the mistake of speaking to the Police, consider recent and highly publicized child pornography case of Michael Harold Hockenberg from Green Oak Township Michigan. The police allege that he admitted to them that he looked at child pornography on the internet because he had "watch[ed] a beheading video and [was] excited by it, he later turned to child pornography for the shock value." Now, his attorney is fighting hard to try and object to these statements being used to potentially increase the severity of his sentence on the grounds that he never said any such thing. When you open your mouth, your case goes south.

What is the definition of a "child" in Michigan's Child Sexually Abusive Material law?

In the Michigan Child Sexually Abusive Material law, a "child" is "a person who is less than 18 years of age," but excludes someone under 18 who has been emancipated by law.

What happens when a computer or the internet is involved in producing, possessing, or distributing Child Sexually Abusive Material?

he Michigan definition of Child Sexually Abusive Material, MCL 750.145c reads:

"'Child sexually abusive material' means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording." While Child Sexually Abusive Material charges don't necessarily involve a computer or the internet, they most often do. The FBI has a catalog of pornographic materials that have already been flagged as child pornography. If you are suspected of accessing child pornography on the internet, your computer hard drive can be inspected to see if the URL for one of those pre-identified child pornography pages is stored on it. However, serious mistakes can be made, and those mistakes send innocent people to Prison every year. The two most important ingredients to a successful defense in a Child Sexually Abusive Material charge are 1) the best Michigan Criminal Defense Attorney you can find, and 2) the most skilled and knowledgeable computer expert witness in cases where a computer or the internet is involved.

Whenever a computer or the internet become involved in a Child Sexually Abusive Material case, defending the case becomes much more complicated. However, it opens the door to new defenses that you wouldn't have if the police simply found print material containing child pornography in your home.

When a person is suspected of allegedly using a computer or the internet in an act of producing, possessing, or distributing Child Sexually Abusive Material, local law enforcement or the FBI will obtain a Search Warrant to take your computers, cell phones, hard drives, and all other electronic devices that can access the internet or store files. This all happens before you are charged when you are still under investigation. Imagine not knowing anything is going on and suddenly Police have the right to bust down your door, enter your home while the neighbors watch and wonder, and take or "seize" your property. If that's not bad enough, because a Search Warrant is obtained by Police behind closed doors, you and your attorney will not have a chance to offer legal challenges until much later.

After your property is "stolen" by Police, each and every item be taken to a Detective or FBI agent whose specialty is doing forensic computer examinations. The devices are charged up (phones placed in "airplane mode") and connected to a special computer where its history and content are scrutinized by special software programs like "Oxygen Suite" or others. The forensic software is capable of recovering internet browsing history, SMS message history, social media history like Facebook and Twitter, instant messaging history. The software is sometimes even capable of accessing content that has been deliberately deleted. Then, the deleted content will be used to show criminal intent on your part, and you could even be charged with Tampering With Evidence or Obstruction of Justice depending on the circumstances.

The end result is that the forensic computer examiner from the Police Department or FBI will testify in Court against you. The bottom-line is that if you are charged with producing, possessing, or distributing Child Sexually Abusive Material, you and your attorney must hire your own forensic computer expert and obtain a Court Order allowing them to examine the electronic devices or an exact (hashtag to hashtag) copy of the hard drive. Your expert must not only be a computer whiz but also skilled at testifying in Court, as you will likely have to call them at trial to contradict the testimony of government's forensic expert. But that's not all...

When the internet or a computer is involved in a child pornography case, you will almost certainly be charged with the separate crime of Using a Computer to Commit a Crime, MCL 750.145d. Because a conviction for Using a Computer to Commit a Crime is a separate criminal charge, it, of course, carries its own sentence, and that sentence depends on whether When the underlying crime is production, possession, or distribution of the child pornography. Here's how it breaks down:

  • Producing child pornography: When the underlying crime is "persuading, inducing, enticing, coercing, causing, or knowingly allowing a child to engage in a Child Sexually Abusive Activity for the purpose of producing any Child Sexually Abusive Material, or arranging for, producing, making, copying, reproducing, or financing, or attempting or preparing or conspiring to arrange for, producing, making, coping, reproducing, or financing any Child Sexually Abusive Activity or Child Sexually Abusive Material for personal, distributional, or other purposes," the added charge of Using a Computer to Commit a Crime is punishable by up to 20 years in Prison or a fine of not more than $20,000.00, or both.
  • Distributing child pornography: When the underlying crime is "distributing or promoting, or financing the distribution or promotion of, or receiving for the purpose of distributing or promoting, or conspiring, attempting, or preparing to distribute, receive, finance, or promote any Child Sexually Abusive Material or Child Sexually Abusive Activity," the added charge of Using a Computer to Commit a Crime is punishable by up to 10 years in Prison or a fine of not more than $5,000.00, or both.
  • Knowingly Possessing child pornography: When the underlying crime is "knowingly possessing or knowingly seeking and accessing any Child Sexually Abusive Material, the added charge of Using a Computer to Commit a Crime is punishable by 10 years in Prison or a fine of not more than $5,000.00, or both.

Unlike most other crimes, where an attempt cuts the maximum sentence in half, an attempt or conspiracy to commit the crime of Using a Computer to Commit a Crime is still punishable by the maximum penalty.

If you are accused of accessing child pornography on the internet or having child pornography on your computer, you should not be surprised if the criminal Complaint reads: "Count 1: Child Sexually Abusive Material," and "Count 2: Using a Computer to Commit a Crime." Get an exceptional Michigan Criminal Defense Attorney on your side immediately!

I am accused of accessing child pornography on the internet and I've been charged with Child Sexual Abusive Material. But how can they prove that the person in the photo was under age 18? Nobody even knows who they are, and the Prosecution never tried to find them...

This is a very common question in Child Sexually Abusive Material cases. The answer is that the Prosecution doesn't have to track the person down and actually prove their age. The Michigan Child Sexually Abusive Material statute specifically says:

"Expert testimony as to the age of the child used in a Child Sexually Abusive Material or a Child Sexually Abusive Activity is admissible as evidence in court and may be a legitimate basis for determining age if age is not otherwise proven."

What this means is this: in Michigan, the law says that a person can access pornographic imagines of someone who is over age 18, and who therefore is NOT EVEN A CHILD, but who "appears to be a child," and the government can charge them with Child Sexually Abusive Material anyway. Then, the government can call a doctor as a witness at trial to say that, in his or her professional opinion, the person depicted is under age 18. That means there are people in Prison right now because a jury convicted them of possessing Child Sexually Abusive Material when they never accessed, viewed or possessed child pornography at all. It is imperative to find a Criminal Defense Attorney capable of destroying this "expert" witness.

In fact, when you are accused of producing, distributing, or possessing Child Sexually Abusive Material, Michigan law actually says that if you want to argue that the person was not, in fact, a child under age 18, YOU have to give a special written notice to the Prosecution and the Court, which must also include all of the evidence in support of this defense and the names of any witnesses who will testify in support of this defense. This is an extremely harsh and unusual law.

Being convicted of Child Sexually Abusive Material charges means being forced to publicly register as a Sex Offender - the Michigan Sex Offenders Registration Act...

Whether or not Sex Offender Registration on the Michigan Sex Offender Registry would be required in a particular case, as well as what type of registration would be required, should always be dealt with on a case-by-case basis. Generally speaking, though, individuals convicted of Child Sexually Abusive Material or Child Sexually Abusive Activity will be required to register publicly as a sex offender. The sex offender registration period begins after any period of Jail or Prison ends (actually, registration itself begins even before Sentencing). How long a person has to register as a sex offender depends on whether the crime involves producing, distributing, or possessing the Child Sexually Abusive Material:

  • Producing child pornography: is a "Tier 2" offense requiring public registration on the Michigan Sex Offender Registry for 25 years after release from Jail or Prison.
  • Distributing child pornography: is also a "Tier 2" offense requiring public registration on the Michigan Sex Offender Registry for 25 years after release from Jail or Prison.
  • Knowingly Possessing child pornography: is a "Tier 1" offense requiring public registration on the Michigan Sex Offender Registry for 15 years after release from Jail or Prison. Tier 1 registration is usually non-public. However, after the 2011 amendments to the Michigan Sex Offenders Registration Act, effective since June 2013, knowingly possessing Child Sexually Abusive Material is specifically named as a Tier 1 offense that requires public registration as a sex offender.

Any person out there with an internet connection can access the public Michigan Sex Offender Registry. A sex offender on the registry is prohibited from residing, working, or loitering within 1000 feet from school property, which is known as a "Student Safety Zone" (except students living with parents). The offender's employment address will also be published online, and NO employer wants their address connected with the Sex Offender Registry. Any person can click a button and find all sex offenders within a specified radius of an address.

In addition to "reporting" or "verifying" your information (1 time per year for Tier 1 offenders, twice for Tier 2 offenders), you would have to notify the proper law enforcement agency immediately if you:

  • Enroll at a College or University, or end enrollment;
  • Change place of employment, quit, or are fired;
  • Change residence or domicile;
  • Change name;
  • Establish any E-mail or Instant Message account or any other type of account used in internet communications;
  • Intend to temporarily reside at any place other than your residence for more than seven days; or
  • Purchase or start to regularly drive any vehicle, or if you sell, transfer, or stop driving the vehicle.

Failing to register, report/verify, and comply with the Sex Offenders Registry Act is a completely separate crime. You must aggressively fight Child Sexually Abusive Material charges.

Can I get the Holmes Youthful Trainee Act ("HYTA") for Child Sexually Abusive Material charges in Michigan?

It's possible. One of the biggest advantages of HYTA is that you never have to register as a sex offender (with limited exceptions, but which wouldn't apply to your case if you have been recently charged). Child Sexually Abusive Material and Child Sexually Abusive Activity charges are not per se ineligible for the Holmes Youthful Trainee Act. However, because is a "listed offense" that requires sex offender registration, you cannot get HYTA unless you are able to show by "clear and convincing evidence" that you are not likely to commit another offense requiring sex offender registration in the future.A person who receives HYTA status can still be sentenced to Jail or Prison.

The Michigan Holmes Youthful Trainee Act, MCL 762.11, allows a young person between 17 and 21 (now 17 to 24, beginning in August 2015) to plead guilty to the offense of Child Sexually Abusive Material, complete their sentence, and avoid having any conviction on their record and avoid sex offender registration. However, if the terms of the sentence are not successfully completed, HYTA status can be revoked and a conviction can enter requiring sex offender registration.

What is the Sentence for Child Sexually Abusive Material in Michigan?

In Michigan, the sentence for Child Sexually Abusive Material or Child Sexually Abusive Activity depends on whether the case involves knowingly possessing, distributing, or producing the material. Here is how it breaks down:

  • Producing: "A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child."
  • Distributing: "A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This subsection does not apply to the persons described in section 7 of 1984 PA 343, MCL 752.367."
  • Knowingly Possessing: "A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material is guilty of a felony punishable byimprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child."

Indeed this is all very stressful and, in fact, downright terrifying to read. We understand that. However, you must stop thinking about the possible sentence. Instead, you must focus on finding the most skillful and detailed Michigan sex crimes lawyer you can find. Your life, future, and reputation are at stake. Jail and Prison are harsh enough, but living on the Sex Offender Registry is like living in an invisible Prison.

At Prain Law, PLLC, our legal team will employ any effort and means necessary to fight for the rights of those accused of crimes of an assaultive nature, including Sex Crimes and Criminal Sexual Conduct.

If you are seeking a trusted Michigan sex crimes lawyer to do everything possible on your behalf, look no further than our team. Contact us by calling (248) 731-4543.

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