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Michigan High Court Considers the Term “Possession” of Child Pornography

by Scott Grabel

In a recent case, the Michigan Supreme Court elucidated the meaning of "possession" within the context of child pornography. The ruling expands the definition of possession to include both actual and constructive possession of child sexually abusive material, thereby making it more difficult for people accused of possession of child pornography to defend against these allegations.

The defendants were identified after federal officials raided a company in Florida that sold child pornography on the Internet. With information from the credit cards used to access and view the images, the defendants were identified and charged with possessing child sexually abusive material, a felony punishable by up to four years in prison and a $10,000 fine.

The defendants argued that the charges should be dismissed because they only viewed images of child pornography on their computers, and passive viewing does not constitute possession of child pornography. The Michigan Supreme Court disagreed.

The court held that the term “possesses” includes both actual and constructive possession of child sexually abusive material. The court said that possession of child pornography occurs when a person has actual control or knowingly has the power and the intention to exercise dominion or control over a depiction of child sexually-abusive material, including an electronic visual image or computer image.

Base on this definition, the court held that viewing child sexually abusive material on a computer screen constitutes constructive possession of the material. According to the court, viewing child pornography on a computer screen amounts to constructive possession because the viewer has the power to exercise dominion and control over the depiction by doing a number of things, including:

  • Internally saving the image to the hard drive
  • Deleting the image from the hard drive
  • Externally saving the image to a CD-R or USB flash drive
  • Printing a hard copy of the image
  • Resizing the image
  • Setting the image as a screen saver or background theme
  • Sharing the image using a file-sharing network
  • Emailing the image
  • Posting the image as a link on the website
  • Using the depiction to create a video or slide show

Using this definition, the court ruled that the defendants knowingly possessed child sexually-abusive material. When they purposely viewed images of child pornography on their computer screens by paying for access, the defendants had constructive possession of these depictions.

Three justices dissented from the majority opinion, arguing that viewing images on a computer screen does not amount to possession. The dissenting opinion stated that such an inference is unreasonable “as it is a giant, and clearly erroneous, logical leap to assume that every time a person intentionally accesses and views images on a website, that person intends to save, print, e-mail or otherwise exercise dominion and control over those images.”

However, unless Michigan enacts legislation to change the law, the assumption that viewing these images constitutes possession will remain. For more information about the legal issues surrounding child pornography, speak with a knowledgeable criminal defense attorney.


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