Penal code section 43.26(f) Possession or Promotion of Child Pornography says, �A person who possesses visual material that contains six or more identical visual depictions of a child as described by section (a)(1) is presumed to possess the material with the intent to promote the material.�


My question is: what does �identical visual depictions of a child� mean in this situation?


For example, if Mr. X has more than 150 images saved to his hard drive that are very clearly child pornography images, does 6 of the images have to be identical images? Or does the mere fact that he has more than 6 child porn images meet the burden for the legal presumption?


We have a bit of a conflict in the office. I believe since there is no case law on the issue, we have to go with the common understanding of �identical�. However, there are others that believe 6 or more, regardless of them being identical, would meet the presumption.


Any guidance would be very helpful.

TDCAA responded with this answer:
My answer is that I have no idea. I went back and checked the legislative history and found where the section was added in 1989, but they did not define identical, nor has there been a definition since then. My reading of the statute, which is irrelevant, would be that identical means exactly that�the same. It doesn�t matter if you have 100 pictures of 10�6 of them have to be the same and if you don�t have that, then you don�t have promotion, you simply have possession.

I see this as the difference between personal use and possession with intent to deliver.

If he's a perv into CP why does he need 6 identical pics other than to share, therefore the presumption.

I certainly don't think that precludes a promotion charge just because he doesn't have 6 identical pics. You are just going to have to prove to a jury how he is "promoting" the pics. Any given perv might have 100's or 1000's of different pics for his own use.

I think that to be entitled to the PRESUMPTION there must be at least 6 IDENTICAL images -- now, I think you could make a reasonable argument that 2 5x7's and 4 8x10 prints that were from the same image (film or digital) are "identical", just as copies of a document would be identical. HOWEVER, if the images vary even slightly, I don't think you get the PRESUMPTION (for example, perv takes 15 seconds of video of child, then prints "stills" from the video, thus has 150 or more "images" and none are identical) -- but you can certainly still charge with intent to promote, you just have to prove up the intent since you can't rely on the presumption.

Isn't the distinction important? Think collector cards. To engage in promotion you will have multiple copies of the identical card to distribute. Someone merely possessing would rarely want more than copy of a card--except possibly for trading and then he runs the risk of promotion.

I think the idea was that if you have multiple copies of the same picture, you are going to sell them to other pervs. However, in the digital age, someone likely to engage in distribution would not need to keep multiple copies of the same image. It might serve us well to update the statute to include the idea that the individual image has been transferred out of the computer. i.e. emailed to someone else, in order to prove promotion.