Under Texas law, a person commits the offense of possession of child pornography if:
(1) the person knowingly or intentionally possesses visual material (e.g. film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide) that visually depicts a child younger than 18 years of age at the time the image of the child as made who is engaging in sexual conduct; and
(2) the person knows that the material depicts the child as described by Subdivision (1).
Some crimes, like speeding, are considered strict liability crimes. For example, when you are pulled for going 67 in a 55 mph zone, your intent to speed is irrelevant. It doesn’t even matter if you knew that you were speeding, were reckless about speeding, or were even negligent about speeding. If your car is going in excess of the speed limit, you can be cited and fined for speeding.
Conventional wisdom suggests the same is true for possession of child pornography and drug charges – if you’re caught with something illegal, then you must be guilty. This has caused tremendous panic in terms of purchasing used computers for fear that the previous owner engaged in illegal activity, or fearing the spyware, pop up windows, or some malicious computer worm that would surreptitiously download child pornography without the user’s knowledge or consent. However, the text of the Texas statute requires two separate mental states: first 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. These mental state requirements provide important safeguards to protect an innocent person from being labeled a connoisseur of kiddie porn.
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