It is illegal to create, receive, distribute or possess child pornography. The penalties for breaking child pornography laws are severe. State laws set forth consequences for perpetrators, which include prison time and hefty fines. If the U.S. government also presses charges, the offender is also subject to prosecution under federal law. The following factors influence the way that child pornography is prosecuted.
Federal vs. State Prosecution of Child Pornography
In general, child pornography becomes a federal case when it involves interstate or international commerce. If the images crossed state lines or national borders, the U.S. government becomes involved.
This is obviously relevant if the USPS is involved in transporting material between states or countries. Federal prosecution is also applicable to situations that involve the internet. It’s fairly easy to track the dissemination of child pornography over the internet using IP addresses. Most internet content originates from servers that are in a different location than the viewers.
18 U.S. Code § 2252 provides details about child pornography laws. This section defines child pornography offenses and sets forth guidelines for prosecution.
Other federal codes set forth guidelines for prosecuting other types of crimes involving sexually explicit depictions of children. For example, statute 18 U.S.C. §2252A has to do with the sexual exploitation of minors. Statute 18 U.S.C. §1466A involves obscene representations of sexual abuse of minors.
Was It Done Knowingly?
Child pornography is a sex crime. To be charged with a child pornography offense, someone must knowingly watch, disseminate or own a visual representation of a minor participating in sexually related conduct. Most nudity qualifies as child pornography if it involves a minor. This is true even if the nudity is not inherently sexual.
The defendant must demonstrate that the crime was committed intentionally. In some cases, such as those in which a defendant downloads several incriminating videos or visits an illegal website more than once, intent is evident.
In other cases, however, it’s more difficult to prove whether the defendant knew about the images. For example, someone working on a shared computer that contains questionable files could claim that someone else downloaded the media. A shady link could redirect you to a child pornography site without your knowledge.
How Many Images Were Involved?
When fewer than three images are involved, the accused individual reports the issue to a law enforcement agency and takes reasonable action to destroy the visual materials and prevent others from seeing them, an affirmative defense may be available.
This is a legal exemption that applies only to federal law. State laws differ regarding the amount of child pornography involved. You should consult with a lawyer before attempting to contact a law enforcement agency about child porn.
The state will typically handle a child pornography prosecution if only a few images were involved. When a large amount of material is in question, the feds usually get involved. The goal is to thwart the creation and dissemination of child pornography. If a defendant can provide details that provoke an investigation of other offenders, they may be able to reduce the severity of their sentence.
Does the Defendant Have a Prior Record?
State sentencing guidelines for individuals with no prior record are not usually as serious as federal sentencing guidelines for the same offense.
Federal sentencing for a first conviction could include five to 20 years of prison time for each offense. Those guidelines shift to 15 to 40 years of prison time for someone with a prior record.
In state court, possession of child pornography could earn you several years in prison. However, for many first offenders with no aggravating factors are sentenced to probation.
In other words, you’re more likely to receive a serious penalty if the federal government is involved.
Disproving Child Pornography Accusations
An individual who commits a child porn crime can be prosecuted. Anyone who attempts or conspires to commit a child pornography offense is also subject to prosecution. But individuals may also be falsely accused.
Some defenses that can prevent prosecution include:
• Mistaken identity – Someone else downloaded, watched, received or distributed child porn on your computer or stole your IP address by changing the VPN.
• No criminal intent – The creator of the material stated that participants were 18 or older, and you had no reason to believe otherwise.
• No knowledge – You didn’t know that you possessed any child porn content.
However, committing child pornography crimes is serious. In many cases, declaring that you viewed questionable materials but weren’t aware of the age of the individuals involved is not a solid defense.
Child pornography is a serious offense. If the crime attracts federal attention, it could lead to decades of jail time, fines and a lifetime on the sex offender registry. If you have been accused of a crime that involves child pornography, contact a child porn lawyer immediately. Authorities will use anything that you say against you. Protect yourself by working with an experienced attorney.
Child Pornography FAQ
Does watching child pornography count as possessing child porn?
There is a legal ambigiuity when it comes to possessing and viewing anything on the internet. If you are accused of possessing, or distributing, child pornography, you should hire a skilled child pornography defense attorney who can defend your rights and present a strong criminal defense case on your behalf. When it comes to child porn, it’s often assumed that viewing is same as possessing. There is a gray area when it comes to things like streaming and possessing links, which your child pornography defense attorney can use to challenge culpability. Certain acts are 100% considered receiving, distributing, and possessing child porn. Consult with an experience lawyer who can examine your case, and discuss your legal options.
Federal Child Porn Lawyers
A visual depiction of a minor, or someone who looks like a minor, engaging in conduct that is sexually explicit is committing the crime of child pornography. A minor is considered someone under the age of 18, and “sexually explicit conduct” is described as a depiction of sexual intercourse that is actual or simulated; masturbation; and abuse or lewd exhibition of a minor’s genitals or pubic area. The fairly recent explosion of camera phones and digital cameras has also created an explosion of opportunities for many people to produce self-portraits and to share them with the world. Sometimes this sense of freedom and fun can lead to criminal activity by some. With the ever-growing use of and growth of the internet, which is able to send images across the world, these kinds of crimes easily grow larger. They are spread with the use of films and photographs, video, digital- and computer-generated images or pictures, drawings, and animations, among others. This act may also be a crime if the face of a minor that is edited onto the body of an adult is shown in a sexual manner.
Child pornography is prohibited in all 50 U.S. states under several federal and state laws. Federal law U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children, prohibits child pornography. Such federal and state laws cover the sexual exploitation of children; selling and buying of children; possession, distribution, and receipt of child pornography; activities that use material constituting or containing child pornography;. and the production of sexually explicit images of a minor to be used to import to the United States. A first-time conviction for child pornography may mean 15-20 years in prison in addition to fines, and these trials may be held in federal or state courts or both.
As severe as these federal and state laws appear, there is one exception to the definition of child pornography. An exception may be granted if it can be shown that the image or depiction has some true literary, artistic, or scientific value. In a child pornography case, the court may use the guidelines of U.S. v. Dost. This case from 1986 charged defendants Dost and Wiegand with enticing minor children and using them to pose nude. However, it was judged that, in one case, the photographs of a 10-year-old girl who was sitting nude on the beach did not meet the definition of “sexually explicit conduct.” Many courts now use these six criteria (although not all six must be present) that stem from the “Dost test”:
* Does the depiction focus on the genital area?
* Is the setting of the photograph sexually suggestive, such as a nude girl
sitting on a bed?
* Is the child photographed in clothing that is not appropriate for her age?
* Is the child nude or only partially clothed?
* Does the depiction make it seem as though the child is ready for sexual
* Is the depiction likely to induce a sexual reaction by the viewer?
If you feel that you have been unfairly charged with any depiction that involves child pornography, you need a firm that understands these laws and will work to get you the best and fairest results for your case. A charge of child pornography is a time of unbelievable stress, and at our firm, we not only take these charges seriously but we understand the turmoil that is involved. We pride ourselves on handling each case with individuality and understanding. We assure professional communication and our promise to use our experience in bringing you the best possible results.
Child Pornography Charges
The laws against child pornography are fairly strict. If you are convicted of possessing child pornography, you could face up to four years in prison and a fine of up to $5,000. If you are convicted of promoting or possessing with the intent to promote child pornography, you could face up to seven years in prison and a fine of up to $5,000. If you are convicted of producing or possessing with the intent to produce child pornography, you could face up to 15 years in prison and a fine of up to $10,000. In addition, if you are convicted of any form of child pornography offense, your name will be added to the sex offender registry (this is true even if it is your first offense).
Defenses Against Child Pornography Charges
If you have been charged with any form of child pornography offense, it is important that you contact an experienced criminal defense attorney as soon as possible. There are many defenses that can be used against these types of charges; for example:
- You did not know that the images were of a minor.
- You did not know that the images were of a minor. The images are not actually pornographic in nature.
- The images are not actually pornographic in nature. The images are part of a serious literary or artistic expression that does not exploit the child.
- The images are part of a serious literary or artistic expression that does not exploit the child. The images are medical/scientific in nature and non-sexually suggestive.
- The images are medical/scientific in nature and non-sexually suggestive. You were entrapped by law enforcement officers into committing an act you would otherwise have avoided (this is rare).
- You were entrapped by law enforcement officers into committing an act you would otherwise have avoided (this is rare). The images were found on your computer without your knowledge.
- The images were found on your computer without your knowledge. The search and seizure of the images was illegal.
- The search and seizure of the images was illegal. The evidence against you has been tampered with or mishandled by law enforcement officers.
Defining Federal Child Pornography Charges and How Courts Misinterpret Situations Related to Them
Individuals with federal child pornography charges have a tough road ahead of them, as these cases are some of the absolute hardest to defend. Individuals who are indicted with this charge are often publicly humiliated as well, even if they were falsely accused or set up. Federal child pornography offenses apply to anyone who possessed, received, viewed or distributed sexually-graphic visual depictions of a minor, meaning even accidentally viewing it could mean serious consequences. Charges can even apply in situations where a minor is depicted through CG imagery, an image of an adult actress is manipulated to look like a minor and/or with sexually-explicit drawings of minors.
The digital age has, unfortunately, made this charge significantly more common. It’s easier than ever to share images online, which is doubly true for child pornography. Individuals could find themselves accidentally viewing or receiving it without any intention to do so. federal courts don’t differentiate accidents and intentional viewings of images depicting child pornography though, meaning people can be hit with the full brunt of the law for a simple accident or misunderstanding; This is why retaining an experienced criminal-defense attorney to defend someone against child pornography charges is essential
There’s also the fact that some people are simply stuck in a dark part of their life and develop dangerous habits on the internet. This doesn’t mean it’s legal to pursue these habits, but it’s important for courts to understand situations where a mentally-ill individual may have the charges, but also pose almost no threat to children. These people can be highly-professional and/or successful individuals who made a mistake and a court won’t always understand that either; To take it further, courts don’t realize that simply indicting someone with these charges could ruin the rest of someone’s professional and personal life with prospective employers and family and friends. Having a knowledgeable attorney on the defense, however, can help explain how an individual is a productive or professional individual irregardless of the charges brought against them.
What Penalties One Could Face If They’re Convicted of Federal Child Pornography Charges
There are US sentencing guidelines that federal courts will strictly follow for child pornography charges; They specifically apply to cases involving possessing, receiving and/or distributing child pornography. The sentencing follows a very specific system that will affect how long a prison sentence is, but all prison sentences will start a mandatory minimum of five years, with a maximum of 20; Sentencing becomes much more strict if the individual was involved in the production of the work, as the mandatory minimum jumps to 15 years with a 30 year maximum. To make matters worse, offenders will also be fined and could be tried before both state and federal courts, which can double the charges and increase a prison sentence. Courts will enforce harsher penalties if the images depicting child pornography feature sexual abuse, sadistic or masochistic acts and/or the individual accused has prior convictions; These factors can cause an individual to face a lifetime of imprisonment. Every person convicted of this offense will also have a dent on their criminal record that prevents them from pursuing worthwhile careers; They will also have to register as a sex offender, which makes living in any area incredibly difficult.
How a Criminal Defense Attorney Can Fight Unfair or Unjust Child Pornography Charges
federal cases involving child pornography can be very difficult; This is because one will only be indicted if the court has highly specific forensic evidence linking a computer to the person accused and/or links the individual’s computer to a server that has distributed child pornography. That’s why people need an experienced attorney in situations like this, as evidence can be planted against them. An attorney can also work on dismissing and disputing the case so that charges can be dropped or a hefty sentence can be lessened. Attorneys will also be able to help individuals realize what is and isn’t a defense for the case and will develop a strategic plan to work on defending them. Lastly, a knowledgeable attorney will be able to determine if law enforcement overstepped their boundaries and violated an individual’s rights and/or planted evidence on an individual.
If an individual is facing a child pornography charge, a determined prosecutor will already be building a case against them and they’ll have to experience public humiliation. This is why an attorney is absolutely necessary, as they can starting building a case for an individual instead of against them. They’ll work hard to disprove evidence and stand with their client every step of the way. Specifically, our firm can greatly help falsely-accused individuals and reformed offenders determine the best course of action with a quick consultation.