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Before discussing child pornography offenses of the defense of a child pornography charge, we must acknowledge that the subject matter is disturbing to almost all people, and that fact influences legislators, police, prosecutors, jurors and judges. As a result, over the past couple of decades, the number of cases filed has increased as has the severity of the punishments imposed. An individual charged with a child pornography is presumed to be ineligible for bail, even if the individual has never been in trouble before. Press releases issued by the government are intended to prejudice the community against the defendant.
But not everyone accused of a crime is guilty of a crime, and this is especially so when someone is charged with a child pornography charge. There are also certain oddities about child pornography cases. First, the age of consent for sexual activity in most states is either 16 or 17. However, a minor for purposes of federal child pornography charges is someone under the age of 18. This results in the anomalous situation where it is perfectly legal to engage in sexual activity with a 17-year-old but a serious felony to possess a nude photo of the same person.
It must also be remembered that possession of pornography is not only legal but constitutionally protected. A lack of knowledge as to the subject of the pornography’s age is not a defense. Therefore, the possession of pornography involving an 18-year-old girl who appears to be 12 is constitutionally protected. The possession of pornography where the subject is 17 years and 364 days old but appears to be in her early 20s constitutes child pornography.
The effects of child pornography charges are life altering. Even if an individual never touched a child, or even thought of touching a child, he can face charges with mandatory minimums of 5 or 10 years in prison and maximum punishments of life in prison. The charge itself destroys reputations and relationships. Even after a prison sentence, the individual may face registration as a sex offender for the rest of his life. It is important that anyone charged with child pornography charges talks to an experienced attorney who understands these charges.
18 U.S.C. 2251 (Relating to Sexual Exploitation of Children),18 U.S.C. 2252 (Certain Activities related to Material Related to the Sexual Exploitation of Minors) and 18 U.S.C. 2252A (Certain Activities related to Materials Constituting or Containing Child Pornography) are the primary statutes used to prosecute child pornography cases. These statutes actually define a number of different offenses involving different conduct and different sentences.
There is a distinction in child pornography cases between “possessing” child pornography under 18 U.S.C. 2252 has no mandatory minimum whereas “receipt” of child pornography under 18 U.S.C. 2252A has a mandatory minimum sentence of five years in prison. However, this distinction is largely illusory. From a logical and legal standpoint to difficult to think of a scenario where an individual who “possesses” child pornography has not received it from someone, unless he created the child pornography, a much more serious offense. Also, it is the government’s decision on how to charge conduct, and it will ordinarily charge receipt under 18 U.S.C. 2252A.
Also, in most cases, it is not the mandatory minimum that drives the ultimate sentence. The United States Sentencing Guidelines (USSG) contain a variety of factors that can significantly increase a recommended sentence. It is possible to get a sentence of less than five years if one is convicted or pleads guilty, but it is difficult. First, the defense counsel must negotiate a plea to mere “possession”, and then the attorney must present evidence to convince the judge to sentence the defendant below the guidelines.
Under 18 U.S.C. 2252A, anyone who “. . .mails, transports, receives, distributes, reproduces, promotes or offers” child pornography to anyone else commits a serious federal felony punishable by a prison sentence of up to 20 years, and a minimum sentence of 5 years. Although this section applies to commercial distributors of child pornography, it also applies to individuals who “share” images with each other. Under the USSG, the distribution of child pornography is punished more severely than the possession or receipt of child pornography.
The production of child pornography is the most serious child pornography offense and applies to anyone who “. . .employs, uses, persuades, induces, entices, or coerces. . .” any minor to engage in sexually explicit conduct for the purpose of producing visual images. It carries a maximum punishment of 30 years in prison and a mandatory minimum sentence of 15 years in prison. As with other child pornography offenses, a person charged with this offense does not need to be in the commercial business of producing child pornography.
Much of the child pornography distributed in the United States is produced overseas, primarily in Eastern Europe and Southeast Asia. However, the fact that the production occurs outside the territorial jurisdiction of the United States does not insulate the producer from prosecution in the United States. If child pornography is produced overseas but shipped to the U.S. for distribution, the producer can be prosecuted in the United States.
Most people who are guilty of a child pornography offense understand their guilt and are willing to take responsibility for their actions. In many instances, defendants are individuals who became caught up in something and would never hurt a child. Yet, the sentencing guidelines for these offenses and the sentences actually imposed in federal courts are draconian. A first-time offender who has been a respectable and productive member of society often faces a mandatory minimum sentence of five years.
In many states, the age of consent for sexual intercourse is 16. Therefore, an adult can have sexual intercourse with a 16-year-old, and it is perfectly legal. To possess photos of that same 16-year-old could result in a five-year mandatory minimum sentence in a federal prison. In Pennsylvania, if an adult sexually assaults someone under the age of 16, he can expect a sentence with a minimum term of imprisonment of 6 to 14 months. Again, if a federal defendant possesses a photo of a 15-year-old engaged in a sexual act, he may face a minimum sentence of 5 years (60 months). This is not to suggest that possession of child pornography should not be a crime or that the sexual assault of children is not a big deal. It should seem obvious that federal sentences for possession of child pornography are disproportionate.
The USSG also contain a number of factors that, if proven at sentencing, aggravate (or increase) the recommended sentence. Some of these factors are:
These factors can significantly increase a sentence.
Anyone convicted of a child pornography offense will be required to register with the state sex offender registry where the convicted person resides after completing a prison sentence. Registration requirements vary from state to state, but generally speaking, convicted sex offenders are required to register their name, address, and other information related to an offense. Often, this information is available to members of the public. 18 U.S.C. 2250 makes it a federal offense for a sex offender to fail to register. The maximum sentence for failing to register is 10 years.
While federal child pornography offenses are serious and vigorously prosected by the Department of Justice, there are defenses to these charges. The blog post entitled “Six Defenses to Child Pornography cases by Dennis Boyle is available here. Too often, inexperienced defense counsel take the government at its word and fail to properly investigate all possible defenses. A complete forensic investigation can uncover malware or other computer viruses that may have allowed the computer to unknowingly access websites or images, files, etc. without the computer owner’s knowledge.
There is also evidence that software used by law enforcement to “track” child pornographers may actually be targeting innocent people. In many cases, law enforcement officials may not have the training to properly investigate these offenses. This improper training can lead to Entrapment, a situation where the government actually convinces an otherwise innocent person to commit an offense. In one case, an adult with significant mental disabilities attempted to find friends on the internet. Unfortunately, he reached a state law enforcement official who encouraged him to exchange child pornography. After the target of the investigation refused to send any child pornography, the agent sent child pornography to the target. He then used the receipt of child pornography as the basis for a search warrant. Police subsequently raided the individual’s home. Eventually, charges were dropped.
It has been reported that the U.S. government is the largest distributor of child pornography in the world. There are federal and state agents that spend a substantial portion of their careers on the web pretending to be child pornographers in search of other pornographers with whom they can exchange pictures. While undercover investigation may sometimes be necessary to uncover crime, they should be creating crimes. When they go too far, they entrap innocent people.
There is no such thing as a “minor” child pornography offense. When your freedom matters, you need the right lawyer on your side. We have been defending these cases for decades and understand how to defend these cases. If you or a family member are charged with a child pornography offense, contact us immediately.