FEDERAL CHILD PORNOGRAPHY: An Overview
Federal law broadly prohibits various acts related to the distribution, transportation (including by shipping or mailing), importation, receipt, and possession of child pornography, including attempted acts and conspiracies to commit such acts. Federal jurisdiction applies if the offense involves child pornography in interstate or foreign commerce– for example, using the U.S. Mail or common carriers to transport child pornography across state or international borders. Additionally, federal jurisdiction almost always applies when using the Internet to commit a child pornography violation. Even if the child pornography image did not travel across state or international borders, it may fall under federal law if the computer downloaded the image or the hard drive used to store it originated or traveled in interstate or foreign commerce.
The four primary types of offenses (distribution, transportation, receipt, and possession) are outlined in Chapter 110 of Title 18 of the United States Code at 18 U.S.C. §§ 2251, 2252, 2252A, and 2260. The statutes prohibit the distribution, shipping, and transportation of child pornography regardless of whether such activities have a commercial or non-commercial purpose (e.g., exchanging child pornography through “peer-to-peer” Internet file-sharing programs).
Possession vs. Receipt charging decisions are vigorously defended at the Rossen Law Firm, especially given their overlapping elements and increased penalties for receipt offenses despite requiring virtually identical criminal conduct. The offense of receipt requires a defendant’s knowledge that he is coming into possession of child pornography when the image is received. That a defendant knowingly possesses child pornography—a lesser-included offense of receipt—does not necessarily mean that the defendant previously knowingly received it.
Possession of child pornography is punishable by up to ten years (or up to 20 years if the offense involves a minor under 12) in federal prison but—unlike the other offenses involving actual child pornography—does not carry a mandatory minimum term of imprisonment. However, if you have a prior federal or state conviction for one or more enumerated sex offenses, the penalty
range for possession increases to a mandatory minimum term of ten years and a maximum term of 20 years of imprisonment.
FEDERAL CHILD PORNOGRAPHY: POSSESSION
Possession of child pornography is defined as obtaining any visual depiction of sexually explicit conduct involving a minor under 18. Section 2252A(a)(5) prohibits knowingly possessing any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography. Section 2252A(a)(4) prohibits knowingly selling or possessing, with the intent to sell, any child pornography.
Some examples of what the law classifies as child pornography are:
- Photos
- Videos
- Digital or computer-generated images indistinguishable from an actual minor
- Images created, adapted, or modified that appear to depict an identifiable actual minor
- Undeveloped film
- Undeveloped videotape
- Electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law
Sexually explicit conduct is specifically defined in 18 U.S.C. § 2256(2)(A) as:
- Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited
- Graphic or lascivious simulated;
- Bestiality
- Masturbation
- Sadistic or masochistic abuse
- Graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;
Under 18 U.S.C. § 2252, the law does not consider any visual representation of sexually explicit content of children illegal. The following are not pornography:
- Drawings
- Sculptures
- Paintings
- Computer-generated images
Images and videos are not classified as child pornography if the person in said videos or images cannot be identified as a child. According to 18 U.S.C. 2252, the depiction must be child porn with actual minors. A “minor” is any person under 18 years, as cited in 18 U.S.C. § 2256(1).
The legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. Additionally, the age of consent for sexual activity in a given state is irrelevant; any depiction of a minor under 18 years of age engaging in sexually explicit conduct is illegal.
WHAT THE GOVERNMENT MUST PROVE
For the defendant to be found guilty of the possession of child pornography, the government must prove each of the following elements beyond a reasonable doubt:
- Knowingly: The individual knowingly possessed the material in question. The person must be aware that they own the material – knowingly had books, magazines, films, videotapes, or other matters that the defendant knew contained (a) visual depiction or depictions of one or multiple minors engaged in sexually explicit conduct;
- Material: The material involved contains an image of child pornography. Child pornography is defined as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). The definition is broad and includes photographs, videos, digital media, and more. In other words, the defendant knew that the visual depiction or depictions contained in the matters (books, magazines, periodicals, films, videotapes) showed at least one or more minors engaged in sexually explicit conduct;
- Interstate or Foreign Commerce: The material was shipped or transported in interstate or foreign commerce or was produced using materials that had been shipped or transported in interstate or foreign commerce– a broad requirement and can include using the internet or mail to receive or distribute the material, or even just possessing it on a device made with components that traveled in interstate or foreign commerce.
As with all criminal charges, the ability of the Government to prove the case can vary depending on the exact nature of the charges and the case details. Therefore, an attorney specializing in federal child pornography defense, like the federal attorneys at the Rossen Law Firm, should always be consulted.
PENALTIES OF POSSESSION OF CHILD PORNOGRAPHY
Any violation of federal child pornography law is a serious crime, and convicted offenders face severe statutory penalties. Potential penalties and consequences for possession of child pornography depend on what types of pornography the individual has and how many are in their possession. Outcomes are also decided based on whether the defendant is charged with possession of child pornography involving a minor older than 12 versus a prepubescent minor, as well as many other enhancements found in the United States Sentencing Guidelines.
Possessing child pornography of a minor that is 12 years or older is a Class D felony. Possible consequences for the defendant are:
- 10 years in prison
- Lifetime supervised release
- After being released from prison, individuals are required to serve parole for the remainder of their lives.
- 18 U.S.C. § 3583(k) describes that a judge is legally required to give at least five years of supervised release after any term of imprisonment
- $250,000 in fines.
It is a Class C felony if someone possesses child pornography of a prepubescent minor. Potential penalties include:
- Up to 20 years in prison
- Lifetime supervised release
- 18 U.S.C. § 3583(k) describes that a judge is legally required to give at least five years of supervised release after any term of imprisonment
- $250,000 in fines
Federal courts use advisory guidelines called the Federal Sentencing Guidelines to determine the appropriate sentencing range for federal crimes, including possession of child pornography. However, the guidelines for child pornography offenses can be quite complex, requiring the expertise of an experienced attorney to challenge them effectively. These sentencing guidelines can be found in Section 2G2.2 of the United States Sentencing Commission Guidelines Manual, which provides a base-level overview of the guidelines for the possession of child pornography.
- Base Offense Level: For possession of child pornography, the base offense level is set at 18.
- Specific Offense Characteristics: The offense level can be increased based on several factors, including (but not limited to) if the material involved a prepubescent minor or a minor under the age of 12 (add 2 levels), if the material portrayed sadistic or masochistic conduct or other forms of violence (add 4 levels), if the offender used a computer or interactive computer service for the possession, transmission, receipt, or distribution of the material (add 2 levels), if the offense involved 600 or more images (up to an additional 5 levels), among others.
- Criminal History: The defendant’s criminal history is also considered, potentially increasing the sentencing range.
- Acceptance of Responsibility: If the defendant accepts responsibility for the offense, this can decrease the offense level by 2 or 3.
The ultimate sentencing decision will be made by a judge, who considers these guidelines along with the statutory range for the offense, the nature and circumstances of the offense, and the history and characteristics of the defendant. Convicted offenders may face harsher penalties if the offender has prior convictions or if the child pornography offense occurred in situations defined as (i) the images are violent, sadistic, or masochistic, (ii) the minor was sexually abused, or (iii) the offender has prior convictions for child sexual exploitation. In these circumstances, a convicted offender may face life in prison.
It is important to note that an offender can be prosecuted under state child pornography laws in addition to, or instead of, federal law.
DEFENSES FOR POSSESSION OF CHILD PORNOGRAPHY
Potential defenses for possessing child pornography include:
- Lack of knowledge of intent: The defendant’s attorneys can argue that the defendant demonstrated a lack of knowledge and awareness regarding the age of the individual in the pornography, Another argument is that the defendant did not know they had pornography at all; this can happen if the individual clicks on the incorrect internet link or accidentally downloads a computer virus without knowing what it contained. Note that depending on the charge and the case, the Government may have ways to circumvent the knowledge and intent evidentiary requirements.
- Good faith destruction or reporting: As outlined in 18 U.S.C. § 2252, if the defendant possessed three or fewer images of child pornography, a defense could be that the defendant made a reasonable faith effort to delete the images or report the matter to law enforcement without allowing anyone other than law enforcement see the images.
- Misconduct by law enforcement: A search warrant and consent are needed for law enforcement to search an individual’s home or computer for child pornography. If law enforcement investigates without taking the proper steps beforehand, the evidence they find is illegally seized and is not allowed to be used in court.
POSSESSION OF CHILD PORNOGRAPHY DEFENSE ATTORNEY IN SOUTH FLORIDA
It is crucial to hire an attorney immediately. Rossen Law Firm’s expert attorneys fight to give the best resolutions and defense possible. If you or a member of your family or friend are charged with or investigated for possession of child pornography, contact our skilled federal criminal defense lawyers at Rossen Law Firm for possession of child pornography consultation.
Our attorneys specialize in defending against possessing child pornography under federal law. They will carefully analyze all the facts and circumstances surrounding your case and develop strong defenses, aiming for the best outcome for you to achieve your best future.
