Q: If I accidentally find myself on a child erotica site. I reported the site. Is this a legal problem?
I contacted the web host to report this site and also contacted the national center for exploited children. There was no nudity or sexual acting out. The site calls itself a modeling site. The girl was 14 modeling underwear and a bathing suit. I did not perform a search term for such a site.
A: It is an interesting legal issue. We must first look to the statutes to understand what erotica is and how a person might commit the offense of sexual exploitation by possessing such erotica. A.R.S. Sec. 13-3553 Provides that "A person commits sexual exploitation of a minor by knowingly:...receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive [sic] exhibition or other sexual conduct...Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705."
If it were a class 2 felony offense the first image could be five years, with someone with no historical prior felonies, and every image after that would carry a presumptive sentence of about 9.25 years. There are often sentences going for long over a hundred years that have been upheld in Arizona for possessing multiple images. The sentencing is different under A.R.S. 13-705, which generally will make that a little longer. In any event, you must then look to whether or not the image constituted "sexual conduct." A.R.S. 13-3551 provides guidance: 10. "Sexual conduct" means actual or simulated: (a) Sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex. (b) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure. (c) Sexual bestiality. (d) Masturbation, for the purpose of sexual stimulation of the viewer. (e) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (f) Defecation or urination for the purpose of sexual stimulation of the viewer." There may be other relevant statutory provisions to analyze whether or not the image itself was exploitative. However, you must also possess the image knowingly, and this would be up for argument as to whether it was accidental or not.
Finally, A.R.S. Sec. 13-3553 provides a safe-harbor for those that are reporting an image under certain circumstances. It provides in part: "It is an affirmative defense to a prosecution for a violation of section 13-3553 that on discovery a person in good faith reports the discovery of unsolicited suspected visual depictions involving the sexual exploitation of a minor." Therefore, if you were charged with the crime, you would want a lawyer to develop your case along those lines. There is also a question of how law enforcement would be notified of your potential charges in the first place, as your question appears to be hypothetical in nature. If you were charged with a Class 2 felony and were facing multiple centuries in prison, you would most want to hire an experienced criminal attorney to handle your case.
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