Child pornography takes many forms, but they all are basically the same. Child pornography is any form fo media, including a photo, a movie, and/or a computer generated image, that shows a minor engaged in sexually explicit conduct. It is important to note that in some states a minor is under the age of 18 and in others, including Alabama, the age of majority is 19.
Sexually explicit conduct is not necessarily the act of sexual intercourse. It can involve any type of sexual or sexually related act that would be inappropriate to show a minor engaged in. There are state and federal laws regarding child pornography.
Even if an image or video is altered so it appears a minor is involved in the act or behavior, it can be considered child pornography. There are few exceptions to this rule, including artist renderings and/or depictions that have serious literary, artistic, and/or scientific value. For example, an anatomy textbook that illustrates the anatomy of a child may be exempt from being categorized as child pornography.
Some individuals have attempted to argue, while unsuccessfully, that child pornography should be protected as free speech and/or free expression under the First Amendment. Courts, however, have rejected this argument mostly because the very existence of the child pornography indicates that further crimes and/or violations occurred in creating the images.
What are the Illegal Uses of Child Pornography?
The basic idea to remember with regard to the legality of child pornography is that if something involves child pornography at all, it is most likely illegal. Each state has their own laws regarding child pornography. It can be prosecuted as a federal offense as well. Federal crimes involving the use of child pornography may include when a defendant:
- Mails child pornography across state lines, including via e-mail;
- Knowingly receives child pornography;
- Knowingly sells or gives out child pornography; and/or
- Advertises child pornography through the mail across state lines, including via e-mail.
What Is the Penalty for Uses of Child Pornography?
The penalty for the use of child pornography may vary depending on the jurisdiction and whether the charges are federal or state charges. A federal conviction for child pornography charges can result in fines and/or prison time. Depending on the facts of the case, the maximum penalty for child pornography resulting from a federal conviction can be up to 20 to 40 years in federal prison.
If child pornography charges are brought under state law, the penalties will vary by state. State penalties, similar to federal penalties, often involve fines and/or jail sentences. As with any other criminal conviction, the weight of the penalty under state law may vary depending on the severity of the crime, the facts of the case, and the defendant’s prior criminal record.
A conviction for violations of child pornography laws may also require a defendant to serve extended time in a supervised sex offender release program and/or register in a sex offender database, commonly known as a sex offender registry. A sex offender is an individual who has been convicted of one of a number of sexual offenses under state or federal law. If a defendant fails to register and/or update their registry as required, they may be subject to more criminal charges.
Sexual offender registries are lists that a state uses to keep track of individuals who have been convicted of certain sexual abuse offenses. States are required by federal law to maintain these registries.
Although the criteria for registry varies by state, it generally includes individuals convicted of:
- Misdemeanor child sexual abuse;
- Felony child sexual abuse and/or felony statutory rape; and/or
- Certain other violent sexual crimes.
These registries usually list the name, address of residence, and, in some states, crimes the offender committed. Offenders who cannot provide an address are not punished, but parole boards typically require some kind of residency listing, even if that location is “the bridge behind the Safeway store.”
States must make these sex offender registry lists available to:
- Law enforcement;
- Victims; and
- Persons and/or groups that get permission from a judge.
Some states have made these lists available to the public. In other states, these lists are available because all state records are public records. Some states maintain an online list.
Can Victims of Child Pornography Sue in Civil Court?
Yes, victims of child pornography can sue in civil court. Minors depicted have the right to sue the distributor to stop them from selling and/or giving away the materials. This type of lawsuit does not have the same effect as a criminal conviction, but it allows the minor to recover some measure of monetary damages. The damages awarded may include punitive damages and costs of bringing the lawsuit.
What Defenses Do I Have If I Have Been Accused of Possessing or Distributing Child Pornography?
If an individual is facing charges involving child pornography, a few child pornography defenses may be available. It is always in a defendant’s best interest to seek the advice and assistance of an attorney in order to obtain guidance, present defenses, and have the case come to the best possible conclusion.
In cases when the charges include distribution of child pornography, a valid defense can be presented if it can be proven that no individual in the explicit material is actually a minor. In cases where the charges include the possession of child pornography, there may be more defenses available.
If any child pornography ever does accidentally end up in an individual’s possession, the best action is to destroy the material and report it to the police. An individual should not show it to others, even if their intentions are good. This could cause them legal and/or criminal trouble.
One of the most effective defenses to child pornography charges is that the defendant was not aware the material they were accessing and/or downloading was, in fact, child pornography. Since the possession of adult pornography is legal, it is possible that an individual may have inadvertently accessed child pornography materials inadvertently and/or mistakenly downloaded the material from a file-sharing website believing it was a movie or a TV show.
It is also possible to present a defense that although material exists on an individual’s computer, they did not download it. This defense may be available when a computer is shared, in a shared space, and/or has multiple users, such as in a work setting.
Do I Need a Lawyer If I Am Facing Charges for Child Pornography?
Yes, if you are facing charges for child pornography, it is important to have the assistance of an experienced criminal lawyer. An attorney, also called a lawyer, can assist you by reviewing the facts of your case, determining what defenses are available to you, and representing you during any court proceedings, if necessary. They will also be able to review and explain the local laws in your state.
A child pornography conviction can carry heavy consequences, including large fines and many years of incarceration. Additionally, it may require an individual to register in a sex offender registry for the rest of their lives. A criminal record and the requirement to register as a sex offender will follow you forever.