750.145(c2): Child Sexually Abusive Activity

750.145(c2): Child Sexually Abusive Activity

A sex crime is serious, particularly if it involves a minor. Both state and federal laws impose strict penalties on people convicted of sex crimes involving children. Any person guilty of engaging in child sexually abusive activity or possessing child sexually abusive material could be sentenced to jail for a long time. In addition, they may be required to pay a hefty fine.

If you or your loved one is charged with this sex crime, you need to speak with a criminal sexual conduct attorney immediately. The impact of a sexual criminal record can be negative and long-lasting. Therefore, you need to develop solid sexual assault defense strategies as quickly as possible.

At Blank Law PC, we are committed to helping criminal defendants get better chances at beating sex crime charges. Schedule your free consultation today. This contact form sends information about your case straight to our desk.

750.145(c2): Child Sexually Abusive Activity

Child sexually abusive activity concerns any sexual act involving or appearing to involve a child younger than 18. It is also known as child pornography. MCL 750.145c(1)(n) provides for the listed sexual acts that would constitute child sexually abusive activity. It is a felony criminal offense, punishable by imprisonment, fine, or both.

Child sexually abusive materials refer to any film, negative image, depiction, picture, slide, video, sound recording, digital visual image, or computer-generated image that includes a child below 18 or appears to include a minor below 18 engaging in any sexual misconduct.

Child Sexually Abusive Activity Under Michigan Law

Under Michigan law, child sexually abusive activity is classified as criminal sexual conduct (CSC), a broad term for all sex crimes. These crimes include what is statutory rape, harassment, indecent exposure, and sex with minors or people affected by a physical or mental disability.

There are four CSC degrees of criminal sexual conduct, depending on the severity of the offense. Criminal sexual conduct 1st degree covers the most serious sex crimes and attracts the harshest penalties. Criminal offenses like rape, child molestation, and sexual assault involving minors and people with disabilities are usually categorized as first-degree criminal sexual conduct. People convicted of first-degree CSC face a lengthy prison sentence, hefty fines, and a permanent record as a sex offender. Their record may also be put in the child abuse registry.

Criminal sexual conduct 2nd degree is also an extremely serious felony charge. It includes intimately touching another person without their consent for sexual gratification (see what is offensive touching). Such unwanted sexual contact could also be out of revenge, intimidation, anger, or humiliation. The punishment for second-degree CSC includes a prison sentence of up to 15 years, mandatory sex offender registration, i.e. the Michigan Sex Offender Registry, and lifetime electronic monitoring where the perpetrator is below 18, and the victim is below 13.

Criminal sexual conduct 3rd degree includes any immoral act involving what is sexual penetration in any of these scenarios – with a person 13 through 15, through force or coercion, or between people related by blood or affinity to the third degree. It may also be an act with a physically or mentally incapacitated victim or where the offender is in a position of authority or influence over the victim (like a teacher-student relationship, see teacher sexual misconduct). The punishment for third-degree CSC is a lengthy prison sentence, hefty fine, or both, or even a requirement to register as a sex offender.

Criminal sexual conduct 4th degree is a misdemeanor, usually involving unwanted sexual contact. It may be with a minor, someone with a mental or physical disability, or between relatives. The punishment for fourth-degree CSC is a jail term of up to two years, a fine of up to $500, or both.

Michigan porn laws forbid child pornography. Child sexually abusive activity falls under any of the four degrees of criminal sexual conduct, depending on the age of the alleged child, the relationship between perpetrator and victim, or other relevant circumstances of the case.

Conduct Constituting Child Sexually Abusive Activity

There are three primary conducts constituting child sexually abusive activity. They are the production, possession, and distribution of child pornography or child sexually abusive materials. When people commit the conduct prescribed, they may be arrested and prosecuted.

Production of Child Sexually Abusive Materials

The production of child sexually abusive material is a felony punishable with a sentence of up to 20 years and a fine of up to $100,000. Defining production can be challenging, however it refers to bringing child pornographic material into existence. Also, it includes downloading and making copies of pornographic photographs and videos.

Any person who coerces, entices, induces, or persuades a minor to participate in any child sexually abusive activity with the criminal intent of producing child sexually abusive material risks an extremely serious felony charge. If they deliberately allow a child to engage in such pornographic material, they could also be charged with a felony offense.

Possession of Child Sexually Abusive Materials

MCL 750.145c(4) provides that it is illegal to possess child sexually abusive material. Possession means searching for, accessing, and being in control of such material. So, is it against the law to look at child pornography? Yes! Possession also includes watching an electronic visual image or video containing sexually explicit content.

Knowingly being in possession of child pornography is a felony. Where the perpetrator knows or ought to know that the victim is a child, they will be prosecuted for the offense, particularly if there is physical evidence against them. Also, the offender will be charged with the possession of child pornography if they have failed to take reasonable caution towards determining the age of the victim.

You may be charged with this underlying offense if evidence shows the material was previously contained on your device. It does not matter that it has been deleted or destroyed or was not put there intentionally.

Consequently, it would help if you were cautious of the websites you visit and the internet ads you click because you may unknowingly have a malicious computer program containing pornographic material transferred to your computer. You could still be prosecuted even though you deliberately did not put them there.

Being in possession of child sexually abusive materials can take different formats, such as magazines, books, digital storage devices, computers, or any other printable medium. The penalties for this crime include a maximum prison sentence of up to four years or a fine of up to $10,000.

Distribution of Child Sexually Abusive Materials

Distributing and promoting child sexually abusive material is a felony in Michigan. The maximum punishment for this offense is seven years imprisonment and a fine of $50,000. The elements of distribution and promotion include an actual occurrence of the distribution or promotion of illicit materials, the knowledge that the material was child sexually abusive, and the criminal intent to distribute or promote such material.

Proving the criminal intent to distribute such material is crucial. The courts have held that accidentally disseminating child sexually abusive material, such as a photograph, does not constitute this immoral act. Sharing such a photograph in this context does not comprise distributing or promoting abusive material (see is sexting a crime in Michigan).

Child Sexually Abusive Activity Under Federal Law

Child pornography is both a state and federal law. It is defined as any visual depiction of a child engaging in sexually explicit activities. This visual depiction could be a picture, electronic visual image, or video.

18 U.S.C. § 2252 criminalizes the production, distribution, possession, or receiving of child pornography and intentionally viewing or searching for child pornography. It does not matter that such pornographic material was deleted or destroyed afterward.

The law defines a child as someone below 18. It also defines immoral acts as sexual intercourse, public display of your private parts with sexual intent, and masturbation. The federal government can prosecute people for child pornography if they use a computer system in their home state to send an illicit image or video of a minor to someone in a different state (see what are internet sex crimes). They could also get involved if the materials used in the commission of the offense were produced in another state.

Being convicted of child pornography can attract a lengthy prison sentence. Offenders could be sentenced to 10 years for intentionally possessing child pornography. The perpetrators may be sentenced to up to 20 years if the crime involves a child below 12 years old. People caught receiving or distributing such child sexually abusive material may be sentenced to jail for 5-20 years. Offenders convicted of child pornography may also be required to pay a hefty fine and court costs or restitution payments. They may also be required to register with the sex offenders registry.

Building an Excellent Defense Strategy

If you have been charged with child sexually abusive activity, you need to act fast. Hiring an internet sex crimes attorney will increase your chances of beating internet sex crime charges, reducing the sentence, or even proving your innocence.

The prosecution must prove the guilt of the defendant beyond a reasonable doubt to secure a conviction. However, different tactics exist for fighting child sexually abusive activity charges. Your attorney may advise you to plead guilty as it could help you get a lighter sentence. Also, your lawyer could use forensic or expert evidence to help you develop a solid criminal sexual conduct defense. You can trust your attorney with confidential or sensitive information about the case, as they are bound by the attorney-client relationship privilege to protect your confidentiality.

Hire Blank Law, PC

If you or your loved one has been charged with child sexually abusive activity, you need to hire a lawyer. It is a serious offense, and you risk prison time. You need a criminal defense attorney to help you prepare an aggressive defense strategy and improve your chances of avoiding jail.

Nicole Blank Becker is an excellent criminal defense attorney who specializes in sex crimes. With her years of experience and cutting-edge advantage as a former prosecutor, she can help you develop a solid criminal defense strategy to help you beat child sexually abusive activity charges. Nicole has proven trustworthy with confidential or sensitive information shared with her, and she honors the attorney-client relationship.

Get started on building a great defense with Nicole today. This contact form sends information about your case straight to her.

Excerpt of the Michigan Penal Code

Act 328 of 1931

750.145c

(1) As used in this section:

(a) “Access” means to intentionally cause to be viewed by or transmitted to a person.

(b) “Appears to include a child” means that the depiction appears to include or conveys the impression that it includes, a person who is less than 18 years of age, and the depiction meets either of the following conditions:

(i) It was created using a depiction of any part of an actual person under the age of 18.

(ii) It was not created using a depiction of any part of an actual person under the age of 18, but all of the following apply to that depiction:

(A) The average individual, applying contemporary community standards, would find the depiction, taken as a whole, appeals to the prurient interest.

(B) The reasonable person would find the depiction, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(C) The depiction depicts or describes a listed sexual act in a patently offensive way.

(c) “Child” means a person who is less than 18 years of age, subject to the affirmative defense created in subsection (6) regarding persons emancipated by operation of law.

(d) “Commercial film or photographic print processor” means a person or his or her employee who, for compensation, develops exposed photographic film into movie films, negatives, slides, or prints; makes prints from negatives or slides; or duplicates movie films or videotapes.

(e) “Computer technician” means a person who installs, maintains, troubleshoots, upgrades, or repairs computer hardware, software, personal computer networks, or peripheral equipment.

(f) “Contemporary community standards” means the customary limits of candor and decency in this state at or near the time of the alleged violation of this section.

(g) “Erotic fondling” means touching a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved. Erotic fondling does not include physical contact, even if affectionate, that is not for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.

(h) “Erotic nudity” means the lascivious exhibition of the genital, pubic, or rectal area of any person. As used in this subdivision, “lascivious” means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.

(i) “Listed sexual act” means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.

(j) “Make” means to bring into existence by copying, shaping, changing, or combining material, and specifically includes, but is not limited to, intentionally creating a reproduction, copy, or print of child sexually abusive material, in whole or part. Make does not include the creation of an identical reproduction or copy of child sexually abusive material within the same digital storage device or the same piece of digital storage media.

(k) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, either by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(l) “Passive sexual involvement” means an act, real or simulated, that exposes another person to or draws another person’s attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.

(m) “Prurient interest” means a shameful or morbid interest in nudity, sex, or excretion.

(n) “Child sexually abusive activity” means a child engaging in a listed sexual act.

(o) “Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.

(p) “Sadomasochistic abuse” means either of the following:

(i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person.

(ii) The condition, real or simulated, of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

(q) “Sexual excitement” means the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal.

(r) “Sexual intercourse” means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between a human and an animal or with an artificial genital.

(2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

(3) A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This subsection does not apply to the persons described in section 7 of 1984 PA 343, MCL 752.367.

(4) A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. This subsection does not apply to any of the following:

(a) A person described in section 7 of 1984 PA 343, MCL 752.367, a commercial film or photographic print processor acting under subsection (8), or a computer technician acting under subsection (9).

(b) A police officer acting within the scope of his or her duties as a police officer.

(c) An employee or contract agent of the department of Social Services acting within the scope of his or her duties as an employee or contract agent.

(d) A judicial officer or judicial employee acting within the scope of his or her duties as a judicial officer or judicial employee.

(e) A party or witness in a criminal or civil proceeding acting within the scope of that criminal or civil proceeding.

(f) A physician, psychologist, limited license psychologist, professional counselor, or registered nurse licensed under the public health code, 1978 PA 368, MCL 333.1101 to 333.25211, acting within the scope of practice for which he or she is licensed.

(g) A social worker registered in this state under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, acting within the scope of practice for which he or she is registered.

(5) Expert testimony as to the age of the child used in a child sexually abusive material or a child sexually abusive activity is admissible as evidence in court and may be a legitimate basis for determining age if age is not otherwise proven.

(6) It is an affirmative defense to a prosecution under this section that the alleged child is a person who is emancipated by operation of law under section 4(2) of 1968 PA 293, MCL 722.4, as proven by a preponderance of the evidence.

(7) If a defendant in a prosecution under this section proposes to offer in his or her defense evidence to establish that a depiction that appears to include a child was not, in fact, created using a depiction of any part of an actual person under the age of 18, the defendant shall at the time of the arraignment on the information or within 15 days after arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney of record a notice in writing of his or her intention to offer that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called on behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the facts that establish that the depiction was not, in fact, created using a depiction of any part of an actual person under the age of 18. Failure to file a timely notice in conformance with this subsection precludes a defendant from offering this defense.

(8) If a commercial film or photographic print processor reports to a law enforcement agency having jurisdiction his or her knowledge or observation, within the scope of his or her professional capacity or employment, of a film, photograph, movie film, videotape, negative, or slide depicting a person that the processor has reason to know or reason to believe is a child engaged in a listed sexual act; furnishes a copy of the film, photograph, movie film, videotape, negative, or slide to a law enforcement agency having jurisdiction; or keeps the film, photograph, movie film, videotape, negative, or slide according to the law enforcement agency’s instructions, both of the following shall apply:

(a) The identity of the processor shall be confidential, subject to disclosure only with his or her consent or by judicial process.

(b) If the processor acted in good faith, he or she shall be immune from civil liability that might otherwise be incurred by his or her actions. This immunity extends only to acts described in this subsection.

(9) If a computer technician reports to a law enforcement agency having jurisdiction his or her knowledge or observation, within the scope of his or her professional capacity or employment, of an electronic visual image, computer-generated image or picture or sound recording depicting a person that the computer technician has reason to know or reason to believe is a child engaged in a listed sexual act; furnishes a copy of that image, picture, or sound recording to the law enforcement agency; or keeps the image, picture, or sound recording according to the law enforcement agency’s instructions, both of the following apply:

(a) The identity of the computer technician shall be confidential, subject to disclosure only with his or her consent or by judicial process.

(b) If the computer technician acted in good faith, he or she is immune from civil liability that might otherwise be incurred by his or her actions. This immunity extends only to acts described in this subsection.

(10) In any criminal proceeding regarding an alleged violation or attempted violation of this section, the court shall deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any photographic or other pictorial evidence of a child engaging in a listed sexual act if the prosecuting attorney makes that evidence reasonably available to the defendant. Evidence is considered to be reasonably available to the defendant under this subsection if the prosecuting attorney provides an opportunity to the defendant and his or her attorney, and any person the defendant may seek to qualify as an expert witness at trial, to inspect, view, and examine that evidence at a facility approved by the prosecuting attorney.

(11) This section applies uniformly throughout the state and all political subdivisions and municipalities in the state.

(12) A local municipality or political subdivision shall not enact any ordinance or enforce any existing ordinance, rule, or regulation governing child sexually abusive activity or child sexually abusive material as defined by this section.