Are there affirmative defenses for CSAM possession charges?
Executive summary
Affirmative defenses to CSAM (child sexual abuse material) possession exist in some U.S. state statutes and in particular fact patterns: examples include narrow statutory exceptions for bona fide scientific/educational uses in Connecticut and age‑gap or occupational‑duty defenses for AI‑generated or state law schemes referenced in Texas and Michigan summaries [1] [2] [3]. Courts and Congress are actively reshaping the landscape — a 2025 federal district opinion protected private possession of AI‑generated virtual CSAM under obscenity jurisprudence, while federal and proposed laws (STOP CSAM Act) and administrative rules push providers and prosecutors in other directions [4] [5].
1. States and statutes supply the clearest affirmative defenses
Some state codes expressly list affirmative defenses. Connecticut guidance describes two statutory affirmative defenses to child pornography possession: possession or creation for bona fide artistic, medical, scientific, educational, religious, governmental, or judicial purposes; and additional procedural or factual exemptions laid out by statute [1]. Michigan practice materials note a defense when the depicted person is an emancipated minor, because the statute treats that person as an adult under state law — and the statute even requires defense counsel to notify prosecutors if that defense will be raised [3]. These are statutory carve‑outs, limited to the language and scope of the particular state law [1] [3].
2. Age‑gap and AI‑generated material: new, narrow defenses emerging
Recent state amendments and commentary address AI‑generated imagery. Texas analysis reports that a 2025 amendment created an affirmative defense for computer‑generated material when the actor is no more than two years older than the depicted child — but that defense applies only to AI/computer‑generated offenses, not to depictions of real minors [2]. Multiple outlets and summaries show legislatures are distinguishing “virtual” from “real” depictions when drafting defenses and penalties [2] [6]. These defenses are narrow, statutory, and tied to precise definitions of “computer‑generated” versus images of real children [2].
3. Knowledge, lack of possession, and procedural defenses are common in practice
Defense counsel commonly raise non‑affirmative but fact‑based defenses: lack of knowledge of the material’s presence, arguments that the media do not meet the legal definition of CSAM, or Fourth Amendment and procedural challenges to how evidence was obtained [7] [8]. New Jersey guidance and defense blogs emphasize “not knowing” possession (for example, on a shared or used computer) as a central strategy; federal Fourth Amendment literature highlights that searches and provider behavior (and whether providers are government actors) affect litigation over evidence [7] [8]. Those defenses challenge elements the prosecution must prove rather than presenting statutory affirmative excuses.
4. Federal law, obscenity doctrine, and recent case law complicate uniform defenses
Federal statutes (18 U.S.C. §§ 2252, 2256) proscribe knowing possession and treat many forms of CSAM as criminal, but the interplay with obscenity and AI‑generated “virtual” material is unsettled. A 2025 U.S. district court dismissed a possession charge under a federal obscenity statute as applied to private possession of AI‑generated virtual CSAM, invoking First Amendment limits — signaling judicial willingness to carve exceptions in some fact patterns even while federal statutory schemes remain broad [9] [4]. That case does not erase federal prohibitions; it demonstrates judicial pushback in specific constitutional contexts [4].
5. Policy shifts: legislation and provider obligations are tightening, not loosening
Congress and executive proposals are expanding obligations on platforms and tightening statutory reach. The STOP CSAM Act of 2025 and related reporting and scanning mandates would require larger providers to report and, in some provisions, to “affirmatively search, screen, or scan” for covered material — narrowing practical safe harbors and changing the enforcement environment even where narrow defenses exist [5] [10]. U.K. memoranda also contemplate regulatory defenses for technology testing, reflecting global policy pressure to restrict creation and circulation of AI‑generated CSAM [11].
6. What this means for defendants and counsel
Available reporting shows affirmative defenses exist but are highly jurisdictional, narrowly drawn, and frequently limited to special circumstances (bona fide uses, emancipated minors, narrow age gaps for AI‑generated images, law‑ enforcement/judicial duty) [1] [3] [2]. Where affirmative defenses are absent, counsel typically pursues knowledge, definition, and constitutional challenges [7] [8]. Recent court decisions and federal proposals mean defenses that succeeded in one venue may be unavailable or rejected elsewhere; defense strategies must be tailored to the statute, the alleged medium (real child vs. computer‑generated), and evolving case law [4] [5].
Limitations: sources used here are summaries, state guidance, legislative text, and press analysis supplied in the search results. They document examples of affirmative defenses and shifting federal and state responses, but do not constitute exhaustive coverage of every jurisdiction’s law; available sources do not mention every state or all possible procedural defenses beyond those cited [1] [2] [3] [7] [4] [5].