Sexual Exploitation of a Child, C.R.S. 18-6-403, involves the possession of child pornography. Whether child nudity equals child pornography is a tough question for most law enforcement officers and deputy district attorneys. We have seen an increasing tendency in Denver, Jefferson and Arapahoe County for police and DAs to charge men with Sexual Exploitation of a Child for any image involving children – even when nudity is not present.
A Recent Denver Example of Sexual Exploitation
A good example of the difficulty law enforcement have with the concept that not all child nudity is the same as child pornography arose recently in a case involving upskirt photos of a teen. The teen was wearing underwear under her dress. Despite this, police went ahead and charged the crime as Felony Sexual Exploitation. To make matters worse, the DA, who has a law degree, could not figure out that this was much closer a case of the misdemeanor Invasion of Privacy for Sexual Gratification, C.R.S. 18-3-405.6. See other examples of Sexting over-charged as Sexual Exploitation.
Sexual Conduct Makes Child Nudity Sexually Exploitative Material
Without some clarification by the courts, every picture of a baby without a diaper, would be child pornography. Government workers need to take to heart the U.S. Supreme Court’s legal decision which states that “child nudity, without more, is protected speech.” Otherwise, every parent would be in trouble for filming the baby who pulled his diaper off in the swimming pool. In Colorado, our state legislature has created terms under the statute for Sexual Exploitation of a Child, which requires some element of sexuality by the nude child or being viewed by the nude child. Nudity alone simply does not qualify.
District Attorneys in Denver Ignore the Law
DAs in Denver, Douglas and Adams County frequently ignore the reality of this law. Eager to prosecute men and women, law enforcement will file charges of child pornography for nude images of kids alone. This conduct fails to abide by Supreme Court precedence. In most cases, defendants fear a felony conviction for this offense and go ahead and plead guilty just to avoid possible prison. While we know they would likely win at trial, there is always some element of risk involved in going to trial and incurring a prison sentence. The government uses fear to motivate men and women to plead guilty to crimes they have not committed.
If you or a family member has been contacted by police in Jefferson County, Aurora or Lakewood, politely refuse and contact one of our highly trained sex offense lawyers at 303-731-0719. We can provide a free consultation at our Centennial or North Denver Office. If a friend or relative is in the Douglas or Arapahoe County Jail, we can go see them while in custody with our low cost jail visit. Together, we can protect your future.