The possession of child pornography is a felony under Florida law. If a person is found with even one image of child pornography, it is a 3rd degree felony punishable by up to five years in Florida State Prison. The possession of 10 or more images or the sharing the images with another person will increase the severity of the charge to a 2nd degree felony punishable by up to 15 years in Florida State Prison.
There are several defenses a skilled attorney will use when a client is charged with 2nd or 3rd degree including:
- Lack of possession.
- Others had access to the device with the images and could be responsible for them.
- The search warrant was not valid in process or execution.
These and other defenses may be viable for a given client and set of circumstances but might not be successful in demonstrating innocence or that the state failed to meet its burden of proof. A smart defense attorney will reduce the risk that their client will be sentenced to prison through the proactive use of a risk assessment.
Sex Offenders’ Risk Assessment
A key component of the sex offender probation program, the risk assessment process can be used prior to sentencing as a crucial part of the defense strategy. A risk assessment is conducted by a qualified practitioner, usually a psychologist or psychiatrist with specific expertise treating sexual offenders. The assessment will determine the risk that the accused presents to the public based on a psychological evaluation, mental and physical health assessment, current charges, past convictions and the person’s willingness to participate in a treatment program.
The participation in a sex offender risk assessment is not an admission of guilt and cannot be used against the defendant during the course of a trial. However, if the report shows that the accused demonstrates no risk to the public, an experienced defense attorney will use the assessment in a plea bargaining or sentencing situation. If successful, the accused can avoid a prison term and only participate in the sex offender probation program.
Sex Offender Probation Program
Most participants in this program do so as a condition of their early release from prison but some are fortunate to bypass this punishment through the risk assessment process described above. The sex offender probation program is one of the most detailed and challenging ones in Florida but it is worth the effort to avoid a lengthy prison term. Participants in this program must meet many requirements which include, but are not limited to:
- Mandatory curfews;
- Active participation in and successful completion of a sex offender treatment program;
- Prohibition of viewing, accessing, owning or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern;
- Prohibition on accessing the Internet or other computer services until a qualified practitioner in the offender’s sex offender treatment program, after a risk assessment is completed, approves and implements a safety plan for the offender’s accessing or using the Internet or other computer services;
- Submission to warrantless search of person, residence or vehicle; and
- Participation at least annually in polygraph examinations.
If the probation terms are not met, the offender will return to or go to prison. Given the seriousness with which the courts treat sexual offenses, especially those involving children, it is crucial to hire an experienced defense attorney familiar with the laws and defense options as quickly as possible. Doing so can potentially protect your job and reputation by allowing you to avoid a prison sentence.