The federal statute does not have the dual knowledge requirement articulated in the State statute. However, the federal statute allows a person’s remedial action to completely absolve any liability for what would appear to be misguided curiosity: It shall be an affirmative defense that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
This defense would protect the foolish teenager from doing a Google search on “kiddie porn” just to see what would come up. The affirmative defense may also go so far as to protect the person that made a terribly poor decision to actively seek to download child pornography, go through with it, and then have an immediate change of heart. Waiting a month, viewing the image a thousand times, making a backup copy, and then deleting it is probably neither promptly nor in good faith.
There is an additional affirmative defense applicable to certain promotion and distribution charges proscribed by 18 U.S.C. 2252A:
It shall be an affirmative defense to a charge that—
(1)
(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and
(B) each such person was an adult at the time the material was produced; or
(2) the alleged child pornography was not produced using any actual minor or minors.
On first blush, it appears to be a rather worthless affirmative defense. After all, if child pornography doesn’t involve minors, it’s not really child pornography. However, there are circumstances in which unscrupulous dealers (as compared to the scrupulous child pornography promoters?) may market images as being child pornography but really involve adult actors.
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