What Constitutes Child Pornography?

The US Justice Department defines child pornography under Section 2256, Title 18 of the United States Code as any visual depiction of sexually explicit conduct involving a minor under 18 years of age. 

Depiction includes traditional media, such as photographs, film, or videotape. But in the modern age, not all child pornography exists in these forms of media. 

A person can also be charged with child pornography if they possess or create digital or computer generated images intended to simulate actual minors engaged in sexual conduct.  

Not only that, but possession of undeveloped film or electronically stored data on a computer that can be converted into photos or video of child pornography is enough to be a violation of federal law.

It’s also important to note that the offending material does not need to show a child actively engaged in sexual activity. Nude photographs of children that are sexually suggestive can still be considered a form of child pornography.

Child pornography can be punished under both State and federal law. Federal jurisdiction takes precedence when the offending material crosses state lines, whether physically or electronically, or travels anywhere between the United States and the rest of the world.

Technicalities Around Age

In some states, the age of consent for sexual activities can be as low as 16 years old. However, under federal child pornography laws, anyone under the age of 18 is considered a minor, overriding any state laws. 

Therefore under federal law, even if a defendant legally engaged in sexual relations with a person 17 years of age, taking nude or sexually suggestive photos or videos of that same person would constitute a federal crime. 

Types of Child Pornography Charges

Federal child pornography charges can be categorized under one of four different forms: possession, receipt, distribution, or production of child pornography. As child pornography attorneys, we can help you defend against:

• Simple possession – Occurs when a person knowingly has video, images, books magazines, or computer media in their possession of minors engaged in sexual or sexually explicit conduct. 
• Receipt – Receipt of child pornography is similar to possession. By definition, one cannot possess child pornography without receiving it, and likewise one cannot receive it without simultaneously possessing it. However federal laws include harsher punishments for receipt of child porn. Lawyers for the prosecution are often left to their discretion whether to charge a defendant with receipt, possession, or both, giving them leverage to pressure defendants into a plea deal.  
• Distribution – Distribution occurs when an individual shares child pornographic images, whether physically, or electronically. Distribution is considered to be more serious than simple possession or receipt.
• Production – Attorneys for the prosecution must prove that the defendant persuaded or coerced a minor into sexually explicit conduct for the purpose of producing pornographic images. Even producers of child pornography who are based overseas can be prosecuted in the US if their materials enter the country.

Defending against these charges isn’t easy. It takes the experience of a skilled child pornography defense attorney to fight for your rights and get the best outcome. 

Statutes Governing Child Pornography

Our federal child pornography defense attorneys can help assist you with the three primary statutes that deal with sexually explicit depictions of children:

• 18 U.S.C. §2252 – Child pornography;
• 18 U.S.C. §2252A – Sexual exploitation of minors; and
• 18 U.S.C. §1466A – Obscene visual representations of the sexual abuse of children.
• 18 U.S. Code § 2251 – Sexual exploitation of children (production of visual depiction)

Penalties for Child Pornography

The penalties for child pornography are serious, but vary depending on the nature of the crime. Charges of possession, reception, or distribution carry significant penalties, but the penalty for production has the harshest sentence.  

Possession of Child Pornography

Simple possession of child pornography is charged under 18 U.S.C. §2252. A first offense for possession carries no minimum sentence, but has a maximum sentence of 10 years. A second or subsequent offense, or if the pornography includes children under the age of 12, or if the material includes depictions of sexual abuse, carries a minimum sentence of 10 years in prison, with a maximum of 20 years.

Receiving/Distributing Child Pornography

Mailing, transporting, receiving or distributing child pornography is charged under 18 U.S.C. §2252A. It carries a minimum penalty of 5 years, with a maximum penalty of 20 years. A subsequent charge of receiving child pornography, or if the material depicts images of sexual abuse, escalates to the penalty to a 15 year minimum sentence, with a maximum penalty of 40 years in prison. 

Production of Child Pornography

A first time offender convicted for production of child pornography under 18 U.S.C. § 2251 can be sentenced for a minimum of 15 years, with a maximum of 30 years in prison. Second time offenders, or if the offense is considered aggravated, can face up to lifetime imprisonment. 

Aggravating Factors

Any of these potential charges may see the penalties dramatically increased if there are aggravating factors. Aggravating factors include:

• The number of images – the more images, the harsher the penalty
• Sado/masochistic or violent images
• Evidence of sexual abuse
• Victim under the age of 12
• Prior convictions of child sexual abuse or pornography. 

Additional Penalties for Child Pornography

If you have been found guilty of any form of possession, distribution, or production of child pornography, you are likely to face additional penalties beyond prison time.

Anyone convicted of a child pornography offense will be required to register as a sex offender wherever they live. Convicted sex offenders must register their name, address, and information related to their offense. Failure to register is another federal offense, with a maximum potential sentence of 10 years. 

In addition, there will likely be significant fines, based upon the nature of the crime itself. 

How A Child Pornography Defense Attorney Can Help Before Charges Have Been Filed

If you are facing charges of child pornography, time is of the essence. Working with a child pornography defense lawyer as soon as you realize that you are under investigation is the key to mitigating the situation.

First and foremost, a skilled child pornography lawyer can help you understand your rights, and prevent you from self incrimination.

But before charges have officially been filed, there is a window for your child pornography attorney to negotiate with law enforcement and prosecutors. The more experienced your attorney, the more likely they are to reduce the severity of the charges or even prevent them from being filed at all.  

Even if there is legitimate evidence of your guilt, often the best potential outcome can be gained during the precharge period. Along with your attorney, you may be able to negotiate a voluntary self surrender. This can avoid a public arrest, and can potentially serve as an example of good character and cooperation with authorities.

However if you wait for charges to officially be filed against you to hire a child pornography defense attorney, you will already be behind when it comes to trial.

Defenses Against Child Pornography Charges

If your case does make it to trial, it becomes all the more necessary to have a highly experienced child pornography defense attorney on your side. 

At Azhari LLC, we have represented many clients in their defense against these serious charges. Some of the potential defenses against child pornography include:

• No Actual Child Pornography – This defense relies on the ability to approve that any images found that may appear to be of children are actually of legal adults who may appear to be underage. This can also apply to artistic drawings or images that may be misconstrued. 

• Unintended Possession – Malware can potentially infect a person’s computer with illegal images, as can perpetrators of a cyber attack or hack. It can also potentially be argued that a defendant was looking for legal pornography, and was inadvertently exposed to child pornographic images. Even if these images were deleted immediately, traces could remain on the computer. An experienced defense attorney can make the case that these images were immediately deleted. 

• Mistaken Identity – If a computer is shared among multiple users, and one of them downloads illegal images, the device owner could potentially be charged with possession or reception of child pornography. In this case, forensics experts could potentially determine the time the material was accessed, providing a defense for the accused. 

• Illegal Search – If the illegal images were obtained by prosecutors before securing a search warrant, the evidence may be suppressed. This defense can also be applied if law enforcement lied to a judge to receive a search warrant, or exceeded the scope of a warrant to obtain the evidence. 

• Entrapment – In attempts to track actual perpetrators of child pornography, law enforcement officials may actually cause a person to commit a crime that they would never have committed on their own. This has been known to happen in so-called “sting” operations, where the officers pose as pornographers and essentially trick the individual into accepting the illicit images. 

Conclusion

Child pornography is an extremely serious charge, one that carries the potential to ruin lives and relationships. Whether you have been charged with these crimes, or suspect that you may soon be charged, it is critically important to secure the services of an experienced child pornography defense attorney immediately. 

At Azhari LLC, we are a highly experienced child pornography law firm, having defended our clients for over 17 years against a variety of white collar and cyber crimes, including child pornography charges. We believe that every one of us has the right to a fair trial, and we will fight diligently for you on your day in court. 

Don’t waste another moment to secure the legal help you need. Contact Sami Azhari, principal attorney of Azhari LLC today, and let us begin to plan your defense.