Josh Duggar sits behind bars today, after being convicted of receiving and possessing child sex abuse materials (CSAM) last week and hauled off to jail to await his sentencing. Since then The Ashley has received a lot of questions regarding what Josh’s future will look like, what his sentence may look like, whether or not any of the other members of the Duggar clan will face charges and more.
Although The Ashley considers herself to have a Doctorate in “Duggary,” she is certainly not a lawyer or legal expert, so she brought in Emily D. Baker, a licensed attorney, as well as a legal analyst and commentator, to answer some of the questions The Ashley has been asked. (Emily also runs a popular entertainment/legal YouTube channel and is the host of The Emily Show podcast.)
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So, throw some tater tots into a casserole dish and grab your accountability partner and let’s get started! Here are answers to some of your Josh-Duggar-related legal questions! (Part 2 of this interview with post tomorrow!)
Q: Josh was convicted of both possessing and receiving CSAM, but is only facing the possible 20-year sentence for receiving CSAM? What happened to the ‘possessing’ charge?
A: On the day Josh was convicted, one of the attorneys who prosecuted him attempted to explain that, while Josh was charged and convicted of both possessing and receiving child p0rnography, the “possessing” is a “lesser, included charge” that is essentially absorbed into that “receiving” charge.
Emily explained the situation in more detail.
“[Possessing CSAM] is a lesser, included crime,” Emily told The Ashley. “What that means is that the “receiving CSAM” charge is the more-significant charge, so the [possessing charge] is a part of it already. They are two things that relate to the same behavior. The lesser one gets absorbed into the greater charge, legally.”
She also explained why it’s significant that prosecutors went with the “receiving” charge rather than the “possessing” charge.
“The receiving charges carries a five-year minimum mandatory sentence,” she said. “Possessing [CSAM] does not have a mandatory minimum and is a lesser crime.”
Should something happen to Josh’s “receiving” conviction during appeals, the prosecutors can essentially “fall back” on that “possessing” charge and sentence him for that, Emily explained. The possessing charge does not just go away.
“He was never eligible to be sentenced on both,” Emily stated. “It was always 20 years max, depending on which [charge] he was convicted of. They could not be added together [so that it’s 20 years per charge]. The top max sentence always has to be 20 years. If he had been convicted of possessing [CSAM] only, there’s no mandatory minimum sentence, so legally, a judge could have sentenced him to no prison time and only probation/parole.
“But because he was convicted of the possessing charge, there’s that five-year minimum, so he has to go to prison for at least five years and up to 20.”
Q: How much time will he actually serve? What are his chances of getting an early release?
A: Emily explained that, with federal sentences like Josh’s will be, he is almost certain to actually serve more of his sentence than if he had been convicted at the state level.
“People generally serve a higher percentage of their sentence when they’re convicted in federal court,” she stated. “In a lot of state courts, if you go into custody, you can get credit for three to four days for every day you actually serve.
“In the federal system, you do not get as much credit for time that you serve so you serve more of your sentence,” she continued. “Instead of serving, say, 50 percent [of the sentence like with state sentences] you serve 80 percent. So the sentences tend to look lower in federal court, but you’re actually serving more time.”
Although Josh has not received his sentence yet (and isn’t scheduled to for about four months), Emily predicts that he will get a sentence in the eight to 12 year range.
“He has no prior convictions, and technically this is a first offense,” Emily stated. “The judge may decide to consider that, they many not.”
Emily also pointed out that the fact that Josh “only” had 65 CSAM images on his computer may work in his favor.
“The amount of images…it’s not shockingly high for this type of case,” Emily said. “Obviously, for people in the real world, one [CSA] image is too many, but in the world of these crimes, it’s not uncommon to see thousands of images… and that’s not what happened here.
“I think eight to 12 is a reasonable range here.. the government will probably argue for 15 [years] but I don’t think they’ll get it.”
“I think that judge will send the message by not giving him just the minimum of five years,” Emily added.
Q: How many years were in the sentence offered to Josh in the plea deal he rejected?
A: The actual terms of Josh’s plea deal were never made public. However, Emily points out that there is an email in the case file from March 2021, in which Prosecutor Dustin Roberts mentions to Josh’s legal team that Josh “hit all the enhancements” and that this would likely result in the government recommending a sentence of “around 10 years.”
Q: Is there any chance his wife, Anna, will be charged with a crime, such as failing to keep her kids safe from Josh, etc.?
A: Anna– who attended each day of Josh’s trial— has received both criticism and sympathy over the course of Josh’s trial, with some even calling for her to be charged for continuing to support Josh.
However, according to Emily, it is highly unlikely Anna will be charged with any crime (based on everything we know right now).
“I don’t see anything [she can be charged with],” Emily said. “She didn’t download anything, and there’s nothing to indicate that [her and Josh’s] own children have been harmed.”
Emily pointed out that, had Josh’s own children been tied to the CSAM he had, his charges would have been different.
“There’s a separate code section that is involved if the images feature his own child,” she said. “If there was any indication of that they would have charged him differently and put him in prison for like 30 years.”
She stated that, while some may not agree with Anna continuing to support Josh, she did nothing wrong legally.
“That computer [with the CSAM] wasn’t in their home, there’s no indication that his children were exposed to those images. I don’t see anything on the facts we have today.”
Emily pointed out that, had Anna been connected to the CSAM that Josh downloaded and possessed, she would have been charged right alongside him at the same time.
“They would have charged her when they charged him. The Feds don’t wait!” she said.
Q: Will Josh’s parents Jim Bob and Michelle face criminal or civil charges for allowing Josh to molest his sisters and the other young girl? Can the Duggar girls sue their parents for this?
A: Jim Bob and Michelle have admitted that they were aware that Josh had molested four of his sisters when he was a teen, and that they tried to solve this issue “in-house” before it was reported to the police in 2006. (That 2006 police report was later leaked to the public by In Touch Weekly, where it was revealed that Josh’s little sisters were his victims, along with one other girl.)
According to Emily, Jim Bob and Michelle are not going to face any charges for their role in this, nor can they be sued by one of the Duggar girls who was a victim of Josh’s.
“The statue of limitations has passed,” she stated. “It’s just so gross but they can’t be charged for endangering the girls for leaving Josh in the house with them when he was also a minor. Criminally the statute has passed.”
“Civilly, the statue has also passed for the daughters to sue [Michelle and Jim Bob] for distress or anything. There’s really nothing that can come of that at this point,” Emily said. “It’s also very unusual for children to sue their parents for the trauma that they go through. It would be an extraordinary thing.
According to Emily, the statue of limitations is around three to five years in Arkansas.
“They would have to prove with documentation that they have suffered distressed,” Emily stated. “They’d have to prove that this has impacted their ability to earn a living or have a normal relationship. Proving that usually that involves therapy and medical records. It would be very invasive to put all that out publicly.”
The Ashley will be posting Part 2 of her interview with Emily tomorrow. That interview will include answers to more of your Frequently Asked Questions about Josh and his situation!
RELATED STORY: Duggar Siblings & Spouses Continue to Release Statements Following Josh Duggar’s Conviction: “For Josh, We Fear For His Soul”
(Photos: TLC; Instagram)
17 Responses
As much a I’d love to agree with Emily here, she’s wrong about the civil lawsuit. Arkansas law actually stipulates that the *discovery of the effects of childhood sexual abuse is where the time begins. This can happen at any point in a person’s life and is not limited to the ten year statute that some criminal cases (which also come with exceptions and stipulations, but that’s a whole different can of worms and wouldn’t apply to the parents here anyway).
A civil case needs to be filed within three years of the DISCOVERY that a childhood trauma of this magnitude and severity has caused lasting effects, most of which the court will not even attempt to measure (it’s a hornet’s nest of greater magnitude than most are willing to take on..and this case, being public already, would be doubly so). It is not based on when the act(s) took place, the severity, any prior case(s) regarding it, or anything else actually. It also does not come with the stipulation that therapy or doctors, etc.. need be involved (it does require some documentation, but the limits of such are quite vast and accepting).
So, yes, the girls CAN sue not only their parents, but also Josh, civilly, at any point that this trauma begins to cause them hardship, provided they BEGIN the process of doing so, within a three year timespan of the discovery of hardship. That doesn’t mean the case needs to be over and done with or have gone to actual court within that 3 years, just that the process needs to begin. So, if, at 40+ years old, any one of these women decides that the hell rained down upon them by their parents and this heinous monster has caused them damage in any capacity…they can sue. Time of discovery is the key point here, as it literally means ” when the injured party discovers the effect of the injury or condition attributable to the childhood sexual abuse.” and it can also involve those who contribute to any of those effects, not just those who committed the original acts.
I wish I didn’t know these things, but, sadly, I do. Until or unless the state revises Ark. Stat. Ann. § 16-56-130(a)., this will always be the case in that state. Also, they don’t have to be living in the state to sue, either, they can live wherever the hell they want, even somewhere that has far more limiting statutes.
“But because he was convicted of the possessing charge, there’s that five-year minimum, so he has to go to prison for at least five years and up to 20.”
Very informative article, thanks. Just a small error in there though, the above should read ‘receiving charge’ and not possessing.
“only 65 images”. Yeah because he got caught. I’m sure there would have been way more had they waited to raid the place. Also 3-5 years seems really short for statue of limitations for child molestation…like wtf.
The law is definitely fucked. I had a former acquaintance who got caught downloading CSAM and that was maybe 7 years ago and he’s been out of prison for a couple of years. I believe he got 5 years. I barely followed his trial after they asked me for photos of my toddler daughters to make sure he didn’t have any images of them on his computer. I couldn’t stomach it.
That would just completely gut me. Automatic life sentence for anyone who produces or views this type of evil.
Early fKn release??? Wtf. I hope ana gets charged
Well at least Anna will not be able to continue breeding babies for Josh!
Omg excuse me while I fan girl! My favorites legal commenter and my favorite snarky pop culture site!
Very fitting cause The Ashley is who turned me onto Emily in the first place ❤️
I never knew I was a law nerd until I started listening to Emily D Baker, lol. And she now lives in TN (per her own disclosure) so I like her even more!
Thanks Ashley for going to the expert for the answers.
The information was broken down very well. Thanks for the clarification.
Hope he tops himself…
I swear if he gets less than 10 I will lose my shit. Locally a father here was charged for over 30+ years for having it on his computer, however they watched a lot of kids and one of them was his target so that was likely included. Im hoping something happens and he doesn’t leave prison for whatever reason it may be and hopefully other inmates have access to the news too. The only sure way to make sure he’s no longer a threat is to remove him from society. He doesn’t deserve air. Personally after the graphic details especially the poor baby I don’t see how any judge could give him a day under 20 years.
It’s awful that there is a statute of limitations on sex crimes-especially involving children. They should have the ability to go after and hold their abusers accountable for their actions at any point.
The sentences revolving sex crimes and CSA crimes are all a disgrace to humans, in some instances I’d say what victims endure are worse than murder and charges should reflect the emotional pain, suffering, and torture like they do the physical equivalent. We simply do not take these charges seriously enough especially considering rehabilitation is very rare for these types of offenders if it exists at all and they usually get more violent not less after serving time for their crimes and go out and reoffend.
great interview. Emily is the best at breaking down cases and her shining personality is ab extra bonus.
3, 2, 1 before KJ steals Emily’s answers.
Isn’t that the truth!!