Your logic would seem to imply that there's no crime with possession of real CSAM either, and that the only crime lies with the original abuser who took the pictures.
Unless there is a very specific "attempt to acquire CSAM" law then no they're not fucking guilty of any crime. If you live in a state where marijuana is illegal and you smoke some oregano because you thought it was marijuana you're not guilty of actually possessing marijuana.
A criminal law is composed of a number of individual statutes. When a state is trying to prosecute someone for a crime they need to prove three elements for each statute: the criminal act (actus reus), intent (mens rea), and the concurrence of both of those.
If a cop sells you oregano and you think it's marijuana you might have the intent to buy marijuana but there's no actual criminal act because oregano isn't illegal. If you make a law that only requires intent then congratulations, you've created thought crimes.
If you want to make entirely fake CSAM possession illegal, that's essentially the same as an intent-only law and creates thought crimes. It's a slippery slope.
It wasn't a cop, but I recall a case some years back when someone sold something as cocaine when it wasn't. Among other things, he went down for fraud.
You're a lawyer, I take it? I'm not a lawyer, and I admit your analysis of this scenario confuses me. Is there no legal difference between merely having intent to commit a crime at some point in the future, and actually attempting to commit a crime?
> Is there no legal difference between merely having intent to commit a crime at some point in the future, and actually attempting to commit a crime?
That was my point. To be charged with and prosecuted for a crime you need to both intend to commit it and then actually/attempt to commit it. Attempted murder is a crime, I both intend to kill someone and try to do so even if I fail. It's not punished as severely as actual murder but it's still a crime. But attempted murder is actual a specific crime in the criminal code. There's elements of it that need to be proven in court.
Unless a jurisdiction has a crime of "attempted possession of marijuana", intending to buy marijuana but ending up with oregano isn't a crime someone can be charged with. If we start writing laws outlawing attempted possession it's a slippery slope that gets into outlawing thoughts. It also opens the door to stupid pre-crime ideas like someone would only use cryptography to get ahold of illegal content therefore anyone using cryptography is instantly guilty of attempting to get illegal material.
You can be sure this is what will happen because it's the very arguments the anti-cryptography groups use.
Source: decade in the criminal justice system.
I had previously proposed that if the abuser has been caught that the victim should get the rights to the images and once they are an adult be allowed to legally sell them (thus a list of legally permitted images), but the AI image revolution has changed that. Have AIs sign their images, CSAM with a proper signature is legal.