Child pornography can take on many forms, but the basic idea is the same. Whether it takes the form of a photo, a movie, or a computer-generated image, child pornography shows a minor (a person under the age of 18) engaging in sexually explicit conduct.
“Sexually explicit conduct” does not have to be the act of sexual intercourse, but can involve any kind of sexual or sexually related act that would be inappropriate to show a minor engaging in.
Even altering an image or video so that it appears to be a minor involved in the act or behavior can be considered child pornography. There are a few exceptions to the basic rule--artistic renderings or depictions that have serious literary, artistic, or scientific value. For example, an anatomy textbook explaining the anatomy of a child may be exempt from being categorized as child pornography.
Some people have tried to argue, unsuccessfully, that child pornography should be protected as free speech or free expression under the First Amendment. However, courts have rejected this argument, largely because the very existence of the child pornography infers that further crimes or violations occurred in creating the images.
While there are federal laws regarding child pornography, state prosecutors can also pursue child pornography charges.
- What are Illegal Uses of Child Pornography?
- What is the Penalty for Uses of Child Pornography?
- Can Victims of Child Pornography Sue in Civil Court?
- What Defenses Do I Have If I Have Been Accused of Possessing or Distributing Child Pornography?
- Do I Need a Lawyer If I Am Facing Charges for Child Pornography?
The basic tenet to keep in mind is that if it involves child pornography at all, it’s most likely illegal. Each state has its own laws regarding child pornography, but it can also be prosecuted as a federal crime as well. Federal crimes involving the use of child pornography can include:
- Mailing child pornography across state lines (including via e-mail);
- Knowingly receiving child pornography;
- Knowingly selling or giving out child pornography; and
- Advertising child pornography through the mail across state lines (including via e-mail).
Federal convictions resulting from charges regarding child pornography can result in fines and prison time. Depending on the circumstances of the crime itself, a maximum prison sentence in federal convictions can be up to 20 or 40 years.
If the charges are brought under state law, the penalties can vary depending on your state. However, like under the federal laws, penalties generally involve fines and prison sentences. As with other criminal convictions, the weight of the penalty under state law can depend on the severity of the circumstances of the crime and a defendant’s prior criminal record.
Convictions for violations of child pornography laws may also be required to serve extended time in supervised sex offender release programs and register in a sex offender database. If you fail to register or update your sex offender listing as required, you can be subject to more criminal charges.
Yes. Minors depicted in child pornography have the right to sue a distributor to stop them from selling or giving away the materials. While this does not have the same effect as a criminal conviction, the minor can at least recover some measure of monetary damages, including punitive damages, as well as the costs for bringing the lawsuit.
If you are facing charges involving child pornography, you may have a few defenses available to you. Of course, it is in your best interests to talk to a defense attorney as soon as you can in order to get the best guidance on defenses and coming to the best possible conclusion.
In cases where the charges focus on the distribution of child pornography, there is a valid defense if it can be shown that no one in the sexually explicit material is actually a minor.
In cases where the charges focus on the possession of child pornography, there may be a few more defenses available.
First of all, if any child pornography ends up in your hands, the best thing to do is to destroy it immediately nd report it to the police. DO NOT show it to others, even if you have the best of intentions--this could land you in more trouble than it’s worth.
One of the most significant defenses to child pornography charges is that the defendant did not know that the material they were accessing or downloading was child pornography. Since possession of adult pornography is legal, it is possible that you may have inadvertently accessed child pornography material without meaning to do so, or mistakenly download the material from a file-sharing website thinking it was a movie or TV show.
Additionally, it is possible to claim that although the material exists on your computer, you did not download it. This can come into play in circumstances where computers are shared or have multiple users, such as in a work setting.
If you have been accused of possessing or distributing child pornography, it is in your best interests to talk to a qualified criminal defense lawyer as soon as possible. An experienced lawyer can explain the laws of your state, help you protect your rights, and present the best defense in court.