Dangerous Misunderstanding of Arizona Law

The press release below comes from the Arizona Attorney’s for Criminal Justice (AACJ) regarding misinformation at the Arizona Legislature that will send hundreds of people back to prison with no judicial review. According to a memo from Arizona Legislative Council, “A person who accidentally clicks on a link that includes pornographic images of a minor would not be guilty of the sexual exploitation of a minor under A.R.S. section 13-3553.”  (emphasis added) However, according to the AACJ, this analysis “presents a dangerously incomplete and misleading view of how Arizona’s criminal legal system actually operates in cases involving alleged possession of sexually explicit material.” You can read the full memos below along with the press release. While this release specifically addresses SB1709, it applies equally to SB1092, SB1239, SB1240, SB1829, HB2966. Each of these bills targets Dangerous Crimes Against Children (DCAC) without an accurate understanding of the DCAC designation and how it is applied. FOR IMMEDIATE RELEASE Press Contact: press@creosote.partners Sen. Shamp Legislative Council SB1709 Memo is Dangerous Misunderstanding of Arizona Law Phoenix, AZ — Arizona Attorneys for Criminal Justice are raising serious concerns about the recently issued legislative memo on SB1709 by Senator Shamp, warning that it presents a dangerously incomplete and misleading view of how Arizona’s criminal legal system actually operates in cases involving alleged possession of sexually explicit material. A copy of the Shamp Leg Council memo and AACJ response to the memo are below.  The response makes clear: the memo’s narrow focus on dictionary definitions of terms like “knowledge” and “possession” ignores the central role of prosecutorial discretion and real-world enforcement practices — where charging decisions are made long before a jury ever considers intent. “In practice, individuals are arrested, charged based on minimal evidence, often before they have legal representation” the response explains. “An accidental download is not a shield from prosecution; it is, at best, a risky and uncertain defense at trial.” The response outlines the typical progression of these cases: Automated reports to the National Center for Missing & Exploited Children (NCMEC) can trigger law enforcement action from a single download. Individuals are often arrested and held on high bonds before having access to counsel. Prosecutors can secure indictments based on a low “probable cause” standard, without defense participation. Mandatory sentencing laws expose defendants to decades — or even centuries — in prison, creating overwhelming pressure to accept plea deals regardless of actual intent. Critically, the response emphasizes that Arizona law allows for conviction based on “constructive possession,” meaning individuals can be found guilty even without direct or intentional control over the material. “The memo reads like a law school hypothetical,” the response states. “But in the real world, people are charged first and forced to prove their innocence later — often under the threat of life-altering sentences.” The authors conclude that the memo’s legal analysis is flawed both in theory and in practice, and warn that SB1709 risks compounding an already severe and unforgiving legal framework. Below is the AACJ response to the Legislative Council Memo of SB1709 ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE 1641 E. Osborn Rd, #8 Phoenix, Arizona, 85016 (480) 812-1700 To: Members of House of Representatives From: Members of AACJ Date: March 20, 2026 Re: Response to Legislative Counsel Memo on SB1709 The Memo regarding SB1709 fails to recognize an extremely important part of our legal system – prosecutorial charging decisions. To simply review the definition of “knowledge,” “receiving,” or “possession” from State v. Jensen, oversimplifies what in reality occurs in a case involving possession of sexually explicit material (SEM). Merely stating a person could not be found guilty based on simple definitions obtained from the Oxford English Dictionary is inadequate and gives a false and misleading concept of how the law and prosecution actually work. How a Case is Commenced: A click on a link. When SEM images are downloaded, intentionally or inadvertently, a notice is sent to the National Center for Missing & Exploited Children (NCMEC). The images are checked for hash marks, i.e. digital fingerprints, to see if they are in the database of known sexually explicit material images and then forwarded to local law enforcement agencies. Local law enforcement agencies then locate the IP address from where the image upload originated. They show up to a person’s residence, unannounced, with a warrant to search the home and all electronics. The police can, and often do, arrest the purported owner/user of the computer and/or electronics. Once a Person is Arrested: Now an Arrestee→Defendant. Once a person is arrested, the police transport the arrestee to a local police station where a trained detective interrogates them. The detective reads Miranda warnings and encourages the arrestee to tell their side of the story. Even if a person says, “I had no idea what I downloaded, it was an inadvertent click,” it is highly unlikely an officer believes them. The arrestee is booked into the county jail and is seen within twenty-four hours by a judge who has little information about the now defendant, or the circumstances surrounding the alleged offense. The defendant does not have an attorney appointed at this hearing. But the State is represented and because A.R.S. §13-3553 requires a mandatory prison sentence, they will request an extremely high and unattainable bond, which the court usually imposes. These bonds are generally over $100,000 dollars and require collateral in the same amount, plus 10% cash to be paid to a bail bondsman. If the defendant is unable to post a bond, they remain in custody. Page 2 of 3 ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE 1641 E. Osborn Rd, #8 Phoenix, Arizona, 85016 (480) 812-1700 Indictment: a scintilla of evidence. The legal standard to obtain an indictment is probable cause. This means is it more likely than not the crime of possessing sexually explicit material has occurred and is it more likely than not the defendant is the person who committed the crime. It is not the high standard of beyond reasonable doubt for a conviction after trial. It is a scintilla – “eyelash”- of evidence. Prosecutors present evidence that NCMEC received notice that an image was downloaded on the defendant’s computer. The detective will testify that they searched the defendant’s computer and there were SEM images on the device. Neither the defendant nor an attorney are permitted at grand jury. A grand jury almost always finds probable cause and issues an indictment. Formal Pending Case, Plea Negotiations and Trial. The Legislative Counsel Memorandum does not address how criminal cases are prosecuted; they were provided with a pointless law school exam hypothetical. The State must prove that a defendant knowingly distributed, transported, exhibited, received, sold, purchased transmitted, possessed or exchanged visual depictions of a minor engaged in exploitive exhibition or other sexual conduct. If an individual’s defense is that he accidentally clicked on something and downloaded, it – that is a trial defense. IT WILL NOT PREVENT CHARGING OR CONVICTION. Telling a police officer that it was done accidentally is rarely believed by law enforcement or prosecutors. Those statements are considered “self-serving” and are not believed, leaving trial as the only option. At trial, the State will argue to a jury that the defense of accident is self-serving and that the defendant knowingly downloaded it, opened it, saw it and it remained in his computer folders,1 saved, and therefore, that is proof that the defendant knowingly possessed it. It is not just about receiving it. Under the law, possession can be defined as actual: you are holding a pen in your hands. Possession is also defined as constructive, you may not be holding the pen, but it is on the table, and you have the ability to exert dominion and control over it. The sentencing scheme for a violation of ARS 13-3553 is set forth in ARS 13-705(F). One image equates to a calendar [flat] sentencing range of 10 – 17 – 24 years in department of corrections. Prosecutors at a minimum charge 10 images, thus the minimum sentence after a trial conviction is 100 years. That is the best sentence a defendant can get if he loses at trial. 1 Even folders he might not know about, i.e. cached. Page 3 of 3 ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE 1641 E. Osborn Rd, #8 Phoenix, Arizona, 85016 (480) 812-1700 The standard plea offer in SEM cases is plead to one count of Sexual Exploitation, with a stipulation to prison and usually a cap of 17 years, followed by lifetime probation. This is why defendants opt to take a plea in cases even where the download was accidental. The circumstantial evidence outlined is sufficient to convict a defendant at trial if the jury does not believe he accidentally downloaded the images. Conclusion Arizona Attorneys for Criminal Justice are raising serious concerns about the recently issued legislative memo on SB1709 by Senator Shamp, warning that it presents a dangerously incomplete and misleading view of how Arizona’s criminal legal system actually operates in cases involving alleged possession of sexually explicit material. ARIZONA LEGISLATIVE COUNCIL MEMO To: Senator Janae Shamp From: Hannah Nies, General Counsel March 6, 2026 RE: S.B. 1709; applicability (R-57-93) BACKGROUND Senate Bill (S.B.) 1709 would amend Arizona Revised Statutes (A.R.S.) section 13-901 to add the following subsection: “0. Notwithstanding any other law, if a defendant is at least eighteen years of age, is convicted of a dangerous crime against children and commits an additional offense or violates a condition of probation, the court shall issue a warrant for the rearrest of the defendant and shall revoke the defendant’s probation in accordance with the Arizona rules of criminal procedure at any time before the expiration or termination of the period of probation. If the court revokes the defendant’s probation and the defendant is serving more than one probationary term concurrently, the court shall sentence the person to terms of imprisonment to be served consecutively.” A.R.S. section 13-705 defines “dangerous crime against children” to include the sexual exploitation of a minor if committed against a minor who is under fifteen years of age or against a person posing as a minor if the defendant knew or had reason to know that the purported minor was under fifteen years of age. A.R.S. section 13-705, subsection T, paragraph 1, subdivision (a), item (vii). A.R.S. section 13-3553 specifies what constitutes the sexual exploitation of a minor. QUESTION Would a person who accidentally clicks on a link that includes pornographic images of a minor under fifteen years of age be guilty of the sexual exploitation of a minor under A.R.S. section 13-3553, thus subjecting the person to sentencing under A.R.S. section 13-705 and thereby to the provisions of S.B. 1709? (We have been asked to assume for the purposes of this memorandum that the act is truly accidental.) ANSWER No. See DISCUSSION. DISCUSSION Under A.R.S. section 13-3553, subsection A, paragraph 2, “[a] person commits sexual exploitation of a minor by knowingly … [d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.” (Emphasis added). Thus, we must consider whether the accidental clicking on a link that includes pornographic images of a minor constitutes the knowing receipt of such images. As summarized by the Arizona Court of Appeals: “Arizona law defines most of the terms contained in section 13-3553(A)(2). Thus, ‘”[k]nowingly’ means … that a person is aware or believes that his or her conduct is of that nature” described by the statute as defining the offense. A.R.S. § 13-105(9)(6) (Supp.2007).2 Knowledge may [be] inferred by circumstantial evidence. See, e.g., State v. Hull, 15 Ariz.App. 134, 135 . . . (1971) (both knowledge and possession may be shown by circumstantial evidence) …. While Arizona Revised Statutes do not define “receipt” or “receiving,” we construe words and phrases “according to the common and approved use of the language” unless “[t]echnical words . . . have acquired a peculiar and appropriate meaning in the law”. A.R.S. § 1-2 l 3 (2002). We will often turn to dictionary definitions for such common usage. State v. Sharma, 216 Ariz. 292,296, 15 .. , (App.2007). To “receive” is commonly defined as “to take delivery of (a thing) from another” and “to accept (something offered or presented)” and “to take in.” II Compact Edition of the Oxford English Dictionary 232 (1971). See also Webster’s II New Riverside University Dictionary 981 (1994) (“[t]o acquire or take (something given, offered, or transmitted)” and to “convert incoming electro-magnetic waves into visible or audible signals”).” State v. Jensen, 217 Ariz. 345,349, 7 (App. 2008). If, as the hypothetical assumes, a person truly accidentally clicks on a link to child pornography, the person would not be aware that he or she is taking delivery of those images, Accordingly, that act alone would be insufficient to constitute the knowing receipt of such images in violation of A.R.S. section 13-3553, subsection A, paragraph 2, See id. at 351, 17 (“This does not mean, however, that inadvertent receipt of images of child pornography violates § l 3-3553(A)(2). Construing the similar federal statutes, .. , courts have clarified and cautioned that inadvertent receipt of such images might or would not be violative of the statutes.”) (emphasis in original). Thus, such a person would not be subject to sentencing under A.R,S, section 13-705 (dangerous crimes against children), and therefore the person would not be subject to the provisions of S,B, 1709,3 (This provision is now A.R.S. section 13-105, paragraph 10, subdivision (b)) CONCLUSION A person who accidentally clicks on a link that includes pornographic images of a minor would not be guilty of the sexual exploitation of a minor under A.R,S, section 13-3553, cc: Rusty Crandell Please note that if the circumstantial evidence demonstrates that the person did indeed access the images knowingly, if the person knowingly retains the images after accidentally accessing them or if the person subsequently knowingly forwards the link to another after gaining knowledge of the link’s content, these actions would violate A.R,S. section 13-3553, subsection A, paragraph 2. See Jensen, 217 Ariz. at 349 & 351, il1I 6, 7 & 17, Accordingly, such actions would constitute a dangerous crime against children and would subject the person to the provisions ofS.B. 1709.