Child Pornography: - Center for Problem-Oriented Policing

Affirmative Defenses
A number of states provide affirmative defenses to child-pornography charges. An affirmative
defense requires the defendant to assert the defense in pleadings. 345 For instance the
defendant can claim that the person depicted was not a minor at the time the image was
produced and the visual image is therefore not child pornography. As an example Minnesota
provides an affirmative defense that the pornographic work was produced using only persons
who were 18 years of age or older. 346
Alternatively the defendant can claim he or she reasonably believed the child was older
than the age prescribed in the statute (i.e., a mistake-of-age defense). For example Arkansas
provides an affirmative good-faith defense that the defendant reasonably believed the person
depicted engaging in the sexual conduct was 17 years of age or older. 347 Vermont requires that
the defendant not only reasonably believed and had a factual basis to conclude that the child
was of age, but he or she also did not rely solely on any oral representation made by the child
as to his or her age. 348 Hawaii, furthermore, provides that the fact a person who appears in the
pornographic material was a minor when it was produced is prima-facie evidence that the
defendant knew the person was a minor. 349
The prosecution must prove the defendant knew the child's age when the modifier "knowingly"
is included in the statute and refers to all elements of the offense. If a statute does not
include knowledge of the child's age as an element of the offense, a reasonable mistake-ofage
defense could be available unless the state explicitly prohibits it. 350 While 16 states
provide a mistake-of-age defense, several including Minnesota and South Carolina expressly
preclude it. Minnesota simply states that mistake as to the minor's age is not a defense to a
charge of use of minors in a sexual performance. 351 South Carolina rules out a mistake-of-age
defense to charges of sexual exploitation or employing a minor to appear in a state of sexually
explicit nudity. 352 South Carolina does, however, provide a mistake-of-age defense to charges
of disseminating harmful material to minors if the defendant requested and received some
form of identification verifying proof of age and the defendant reasonably believed the minor
was of age. 353
Many states provide presumptions or inferences as to age. Alabama, for instance, does not
require the prosecution to introduce into evidence a birth certificate or testimony as to the
depicted person's age but permits the jury to infer the age from the factors noted below.
• general body growth and bone structure of the person
• development of pubic hair or body hair on the person
• development of the person's sexual organs
• context in which the person is placed by any accompanying printed or text material
• any expert testimony as to the degree of maturity of the person 354
Another approach, used by Rhode Island, creates a rebuttable presumption of minority
upon the testimony of a physician. The prosecution can present testimony by a duly
authorized physician that he or she is of the opinion, based on the physician's examination of
the child pornography, that the depicted person is younger than 18 years of age to a reasonable
medical certainty. 355 The correct use of such expert testimony, including a physician's
knowledge of sexual maturation, may have important implications in the application of these
statutory provisions. 356
32 - CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE