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What Factors Determine How Child Pornography is Prosecuted?

September 23, 2022 Federal Criminal Attorneys
What Factors Determine How Child Pornography is Prosecuted?

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 lawyer immediately. Authorities will use anything that you say against you. Protect yourself by working with an experienced attorney.

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