Child Pornography Law

Federal and state authorities are serious about investigating, charging and prosecuting cases involving the downloading or viewing of child pornography. Viewing Child Porn can lead to either a state or federal criminal case.

Often times, the local authorities will communicate with the federal authorities about a case and they will determine if the case is serious enough, involves more than one state or involves multiple defendants, so that it might warrant a federal prosecution and federal resources. Generally, it is much more desirable to have child pornography cases tried in state court since sentences are more flexible and not as stringent.

A good lawyer will understand how to navigate these waters and can discuss strategies with a client.

Child Porn is Strictly Prohibited. The United States Supreme Court has ruled on the matter, deciding that child pornography can be regulated in any manner overriding First Amendment free speech rights. Defense attorneys often refer to "Dost Factors" relating to the U.S. v. Dost case (1986). The factors examine the focal point of the visual depiction, review whether the setting is visually suggestive, whether the child is posed in appropriate attire, whether the child is nude, semi-nude etc., and whether the image indicates the child's willingness to engage in sexual activity, and whether the picture is meant to elicit a sexual response from those viewing it. The Court has ruled that certain images of fully-clothed children may constitute child pornography, however and therefore courts have truly drawn a line in the sand to protect children.

Federal Sentencing

In federal cases, for transmitting or redistributing illegal images of children, one can receive a sentence of 5 to 20 years in federal prison. With certain prior convictions relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sentence can be between 15 to 40 years.

Even if one is simply viewing the images, they can receive a sentence of up to 10 years in a federal prison, and the aggravated sentence based on certain factors mentioned above can be from 10 to 20 years.

There are defenses to these cases under the federal statute that depend on the special facts and circumstances of the case.

California Child Pornography Laws

In California, state child pornography cases hinge on the knowing possession of images or other matter depicting people under 18 engaging in or simulating sexual conduct. (See Penal Code Section 311.11.) These cases are felonies that can result in state prison time. Second time violations or violations by those who have prior registrable offenses can involve prison time of 2 to 6 years and may result in a sex offender registration.

Simulation Sexual Conduct

Simulating Sexual conduct is vaguely worded under California state law and initially police may point to images of children without clothes on OR children with or without clothes engaged in sexual activity (including but not necessarily intercourse) with other children or with adults. Authorities view different levels of child pornography with varying levels of culpability.

Possession of Child Pornography v. Distribution of Child Pornography

As mentioned above, authorities distinguish people who download other people's child porn from people who distribute porn to others. Most culpable are those who distribute porn which was derived or generated from them, such as photos or footage of a young family friend or relative. Under California Penal Code section 311.3, sexual exploitation of a child includes the duplication or transmission of data or images including film, photos or videos (or the like) that contains or incorporates any film that depicts a person under 18 engaged in sexual conduct, which is defined as (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral anal, whether between persons of the sale or opposite sex or between humans and animals; (2) Penetration of the vagina or rectum by any object; (3) Masturbation for the purpose of sexual stimulation of the viewer; (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer; (5) exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer; (6) Defecation or urination for the urpose of sexual stimulation of the viewer.

Penal code 311.4 and 311.2

Under Penal Code section 311.4 using or employing a minor to conduct these acts are prohibited.

Penal Code section 311.2 specifically outlaws sending or bringing in to the state offending material of minors (under 18) engaging in sexual conduct with the intent to distribute or exchange with others is guilty of a felony punishable by state prison sentence of 2 to 6 years or a fine of up to $100,000.

The Defense of "lack of knowledge." 

A defense to each of these sections would be that one did not know (and should not reasonably know) that the subject was a minor. However many defendants claim this defense and your attorney will discuss how to use it appropriately.

Means of Transfer or Storage

The laws make it clear that any means of transfer or storage counts. They can be on film, filmstrip, photograph, negative, slide, photocopy, videotape, laser disc, computer hardware, computer software, floppy disc, data storage media, CD-ROM, or computer generated equipment or any other computer generated image.

Frequently people who view child pornography will attempt to evade the system. They will download images to a disk from someone else's computer, including their own child's computer. This process often backfires when police come to their door with a warrant and confiscate all electronics from the home.

Warrants

In order for police to take items to build a case against you, they either need a warrant or they need your permission. So long as a warrant mentions the kinds of items to be seized with some specificity, authorities will be able to seize electronics and other items at wholesale. Zealous authorities may act with a sense of urgency when entering your home in order to achieve an effective response from the accused. It is best to invoke your right to remain silent in those instances. During these searches, it is quite possible that despite a home being torn up by authorities who search for and seize items, the suspect remains just a suspect who is not arrested. Whether one is arrested at that point or not, it is a good idea to contact your lawyer and anticipate and plan for the future arrest.

Sex Offender Registration / Certificate of Rrehabilitation and Governor's Pardon

Viewing and transmission of child pornography is an offense that generally requires registering as a sex offender where you live, including through Meghan's List which makes the information available on the internet. Registration is a requirement that goes on indefinitely unless, well after the case is done, one can prove he has been rehabilitated or, in a less likely scenario, by governor's pardon.

Counseling and Treatment Programs for Sexual Addiction

There are counseling and treatment programs for people with sexual addictions or unhealthy fetishes and extreme desires. Someone who has been charged with a crime relating to child pornography would be wise to investigate counseling or treatment programs both because they may be helpful and because such programs might be viewed favorably by the judge and others involved in your case. Some courts will include counseling as part of a lighter court sentence.

Political and Economic Realities

Because protecting children is a great concern and because of the sudden freedom of information flowing due to the internet, some say there is an overreaction by politicians and that sentences and other penalties for child pornography cases is out of proportion. This may be a valid point where children are unharmed or where an unsuspecting recipient of porn receives hundreds of illegal files through a filesharing site. Where a young adult makes a great error in judgment, he may have to live with that decision 60 years later. Although lifelong registration may seem like a workable solution to the matter of sex offenders living near people with kids, these rules of registration typically prevent people trying to reintegrating into society, from obtaining jobs, and from surviving in any meaningful way.

If you are or someone you know is being accused of a crime related to the viewing or transmission of illegal images, contact Summit Defense so that we can discuss your best options and perhaps take on your case.