The Texas statute contains specific affirmative defenses to possession of child pornography:
It is an affirmative defense to a prosecution under this section that:
(1) the defendant was the spouse of the child at the time of the offense;
(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
(3) the defendant is not more than two years older than the child.
As one can imagine, defenses (1) and (2) are rarely used because those types of cases wouldn’t be prosecuted. Regarding defense (3), have you ever see the best movie on the planet, “Parenthood?” The two year window would protect Keanu Reeves’ & Martha Plimpton’s characters during their infamous bedroom photography scene that was later discovered by her mother. (Quixotically, the age range for prosecution of nude pictures is far more strict than actually engaging in sexual contact. For a discussion of the differences in ages in child sexual assault prosecutions, click here: http://sg-llp.com/sexoffense-relevantages.php.
More important than the affirmative defenses listed, the core of the Texas statute creates a powerful roadblock to prosecution of innocent possession. By relying upon two separate mental states requiring that the person knowingly or intentionally possessed the visual material, and more importantly, that they knew that the visual material depicted a child younger than 18, the most common defense under the statute is “I had no intent to possess child pornography.”
For example, under the Texas statute the following situations would not subject one to knowingly or intentionally possessing illegal visual material:
-Consumer buys used computer without knowing illegal visual material is hidden on hard drive (and forensic analysis of hard drive proves that user has never accessed those files)
-Consumer opens spam which contains visual material; consumer deletes e-mail but does not know how to delete the downloaded file (and forensic analysis of hard drive proves that user has never accessed those files)
-Consumer seeks to purchase adult pornography, purchases pornography marketed as adult pornography, but performer lied about her age and is actually 17 in the film
Note the repeated caveat that about the forensic analysis of the hard drive. A more detailed discussion can be found here on our computer forensics page.