3.5Possession of Child Sexually Abusive Material
A.Elements of Offense
“A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child is guilty of a crime[.]” MCL 750.145c(4).
Under MCL 750.145c(5), MCL 750.145c(4) “does not apply to any of the following:
(a) A person described in . . . MCL 752.367 [providing exemptions for certain persons8], a commercial film or photographic print processor acting under subsection (9), or a computer technician acting under subsection (10).[9]
(b) A police officer acting within the scope of his or her duties as a police officer.
(c) An employee or contract agent of the department of health and human services acting within the scope of his or her duties as an employee or contract agent.
(d) A judicial officer or judicial employee acting within the scope of his or her duties as a judicial officer or judicial employee.
(e) A party or witness in a criminal or civil proceeding acting within the scope of that criminal or civil proceeding.
(f) A physician, psychologist, limited license psychologist, professional counselor, or registered nurse licensed under . . . MCL 333.1101 to [MCL] 333.25211, acting within the scope of practice for which he or she is licensed.
(g) A social worker registered in this state under . . . MCL 333.16101 to [MCL] 333.18838, acting within the scope of practice for which he or she is registered.” MCL 750.145c(5).
MCL 750.145c(4) requires “a specific mens rea or knowledge element as a prerequisite for establishing criminal culpability[.]”10 People v Flick, 487 Mich 1, 13 (2010). “[U]nless one knowingly has actual physical control or knowingly has the power and the intention at a given time to exercise dominion or control over a depiction of child sexually abusive material, including an ‘electronic visual image’ or ‘computer image,’ either directly or through another person or persons, one cannot be classified as a ‘possessor’ of such material.” Id. at 13-14.
An indictment for a violation or attempted violation of MCL 750.145c(4) “may be found and filed as follows:
(a) Except as otherwise provided in subdivision (b), an indictment may be found and filed within 10 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later.
(b) If evidence of the offense is obtained and that evidence contains DNA that is determined to be from an unidentified individual, an indictment against that individual for the offense may be found and filed at any time after the offense is committed. However, after the individual is identified, the indictment may be found and filed within 10 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.” MCL 767.24(3).
M Crim JI 20.38c, Child Sexually Abusive Activity—Possessing or Accessing.
Possessing child sexually abusive material is “a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both” unless this is defendant’s second or subsequent offense under MCL 750.145c or the sexually abusive activity or material “involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material.” MCL 750.145c(4)(a)-(b); MCL 750.145g.
A defendant convicted of a second or subsequent offense under MCL 750.145c is subject to “a mandatory minimum sentence of not less than 5 years.” MCL 750.145g. For purposes of MCL 750.145g, “an offense is considered a second or subsequent offense if, prior to conviction of the second or subsequent offense, the person has been convicted under [MCL 750.145c] or of another crime involving a sexual offense against a minor.”
If the possession of child sexually abusive material “involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material,” then it is “a felony punishable by imprisonment for not more than 10 years or a fine of not more than $50,000.00, or both.” MCL 750.145c(4)(b).
A defendant convicted of possessing child sexually abusive material must pay a crime victim assessment of $130. See MCL 780.905(1)(a).
3.Minimum State Cost and Other Costs
If the court orders payment of any combination of a fine, costs, or applicable assessments, the court must impose the minimum state cost of not less than $68. See MCL 769.1j(1)(a); MCL 769.1k(1)(a).
If the defendant meets the domicile, residence, employment, or student status, registration is required. See MCL 28.723. MCL 750.145c(4) is a tier I offense under the Sex Offenders Registration Act (SORA). MCL 28.722(r)(i).
For more information on the SORA’s registration requirements, see Chapter 9.
1.Possession and Knowing Possession
“The Legislature reasonably selected the verb ‘possesses’ to communicate that only a person who has the power to exercise a degree of dominion or control over ‘any child sexually abusive material’ is sufficiently culpable to fall within the scope of MCL 750.145c(4). That is, the possessor holds the power or authority to control or exercise dominion over child sexually abusive material at a given time.” People v Flick, 487 Mich 1, 13 (2010).
“[I]t is not the initial viewing that amounts to knowing possession. Rather, it is the many intentional affirmative steps taken by the defendant to gain actual physical control, or to knowingly have the power and the intention at a given time to exercise dominion or control over the contraband either directly or through another person or persons, that distinguishes mere viewing from knowing possession.” Flick, 487 Mich at 18.
MCL 750.145c(4) is not unconstitutionally vague in permitting multiple charges for “both a single image of child sexually abusive material and a collection of images of child sexually abusive material.” People v Loper, 299 Mich App 451, 460-461 (2013) (a “distinction between the number of images and the number of collections of images is irrelevant: the number of images (over 100) or the number of disks (four) were sufficient to find that defendant possessed three or more different child sexually abusive materials”).
3.Distinction Between Downloading Prohibited Material on Computer and Possessing Prohibited Material Obtained by Other Methods
MCL 750.145c(4) (criminalizing the possession of child sexually abusive material) and MCL 752.796 (criminalizing the use of a computer to download child sexually abusive material) are not in pari materia. People v Loper, 299 Mich App 451, 466-467 (2013). “The object and purpose of MCL 752.796 is to preclude the use of a computer to commit any crime while the object and purpose of MCL 750.145c(4) is to preclude the possession of child pornographic material regardless of how it is produced. Accordingly, based on their plain language, MCL 750.145c(4) and MCL 752.796 do not address the same subject or share a common purpose.” Loper, 299 Mich App at 466.
8. For a list of persons exempt under MCL 752.367, see Section 3.5(A).
9. MCL 750.145c(9) and MCL 750.145c(10) create immunity from civil liability and protect as confidential the identity of a commercial film or photographic print processor or a computer technician who reports to a law enforcement agency information about a depiction of a child engaged in a listed sexual act.
10.For additional information on mens rea and criminal liability, in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 10.