Is Child Pornography a State or Federal Law?
Child pornography is any visual depiction of sexually explicit conduct involving a minor.
Under the Michigan Penal Code (750.145c), production, knowing possession, promotion, or distribution of any visual depictions of minors engaging in sexually explicit conduct could lead to a criminal charge.
With that said, the U.S. code also prohibits producing, knowing receipt, or distributing any child pornographic material. That means child pornography crimes can be prosecuted under state or federal law, depending on the underlying circumstances.
Whatever the level of child pornography charges you may face, a child pornography offense can be life-altering, upon conviction, and require working with a skilled criminal defense attorney.
Is Child Pornography a State or Federal Law?
If you face child pornography charges, this article provides all there is to know at the state and federal levels.
State and Federal Child Pornography Crimes
Typically, child pornography charges are prosecuted under state laws and are enforced by state law enforcement agencies.
If child pornography crimes cross state or international borders, or involve interstate or foreign commerce, federal law then comes into play.
Therefore, it’s important to work with a lawyer well-versed in Michigan and federal law when facing any form of child pornography charges or sexual abuse charges.
Michigan Child Pornography Laws – Penal Code (750.145c)
Michigan law prohibits the production, distribution, and possesion of child pornography, as outlined below:
1. Production of Child Pornography
Any person who causes a child, in any way, to engage in sexually explicit conduct for the purpose of producing child pornography shall be guilty of a felony.
It’s important to note that taking photos of oneself as a minor or a minor encouraging another minor to take sexually explicit photos of themselves could result in the minors being charged with producing child pornography.
*In Michigan a “child,” for purposes of the charge of production of child pornography, is under 18 years old.
Under Michigan law, the production of child pornography is punishable by a maximum of 20 years in prison, a fine not exceeding $100,000, or both. Additionally, asset forfeiture and repossession may also apply, depending on the case’s circumstances.
2. Possession of Child Pornography
Under Michigan law, it’s a criminal offense for a person to have any form of child pornography in their possession. This includes personal photos shared among minors.
For example, a girl under 18 sending photos depicting sexually explicit conduct to her boyfriend could see him charged with possessing child pornography, upon arrest, with the images in their phone or any device.
Upon conviction, possession of an image of child pornography carries a penalty of up to four years in prison, a fine of up to $10,000, or both. Additionally, asset forfeiture and repossession may also apply, depending on the circumstances.
3. Distribution of Child Pornography
Under Michigan law, it’s a criminal offense for a person to participate in the distribution of child pornography.
Distribution of child pornography offenses carries a penalty of up to 20 years in prison, a fine of up to $100,000, or both. Like other child pornography-related offenses, asset forfeiture and repossession may also apply, depending on the circumstances.
4. Using the Computer or Internet to Commit a Crime
Besides production, distribution, and possession of child sexually abusive material laws, the use of a computer or the internet is also applicable under child pornography rules where a computer, a computer network, or the internet was used in the violation of the crimes outlined above.
Penalties for using a computer or the internet, in the commission of a crime, are dependent on the underlying offenses, which can range from between one year to a maximum of 20 years, a fine of between $5,000 and $20,000, or both, on top of other penalties for the underlying offenses.
FEDERAL LAWS ON CHILD PRONOGRAPHY
Federal child pornography laws are very stringent and carry severe penalties, compared to their state counterparts. They are designed to protect against sexual abuse of children and child sexual exploitation.
What is Child Pornography Under Federal Law?
While other images may be protected under first amendment rights, images of child pornography are not.
Under 18 U.S.C. 2256, any visual depiction of sexually explicit conduct involving a minor is classified as child pornography and illegal.
Visual depictions include videos, photographs, computer-generated images that are indistinguishable from a minor, or any image that has been created to depict an identifiable minor.
Under federal law, underdeveloped film, videotape, and electronically stored data that can be processed into child pornography are also classified as child pornography.
Notably, for an image to qualify as child pornography under federal law, there is no requirement that the child is depicted engaging in sexual activity. Any picture of a naked child may constitute child pornography if it’s sufficiently sexually suggestive.
Federal Child Pornography Charges
As stated earlier, child pornography charges are prosecuted on a state level. However, under certain circumstances, federal law may come into play, which also means the involvement of federal law enforcement agencies.
It’s not uncommon for a charge to begin on a state level and then move up to a federal court as more evidence emerges, and vice versa.
Therefore, having an attorney skilled at defending sexual crimes on a state and federal level is critical when facing child pornography charges, because you may never know how the evidence may play out in the future.
Crimes committed using the internet across state and international lines may attract federal investigation and prosecution.
Circumstances Under Which Federal Charges are Applicable
Before federal law enforcement agencies enforce federal child pornography laws, child pornography and child sexual abuse crimes must meet a specific criterion, according to 18 U.S.C. 2251 – Sexual exploitation of Children penal code.
The offense must have occurred in interstate or foreign commerce. For example, through the U.S. mail or carriers to move the child sexually explicit content across state lines or international boundaries.
Additionally, federal jurisdiction almost always applies where the internet was involved in committing child pornography-related crimes.
This law may still apply even where the image itself does not travel across state or national borders, if other materials, such as the computer or the storage devices, used to commit the offense did.
Federal Child Pornography Laws on Production, Reception, Distribution, and Possessing Child Pornography
Federal child pornography law prohibits the production, distribution, possession, and reception of child pornography through any means, including U.S. mail and interstate or foreign commerce (see 18 U.S.C. 2251; 18 U.S.C. 2252; 18 U.S.C. 2252a).
Specifically, federal child pornography 18 U.S.C. 2251a law on sexual exploitation of children, which covers causing a person below the age of 18 to engage in sexually explicit conduct to create images of child pornography, which includes any visual depiction of a child engaging in sexually explicit conduct and child sexual abuse, is a crime punishable by law.
Additionally, section 2251 of title 18 of the federal law on sexual exploitation of minors makes it a criminal offense for any parent or guardian, to a minor, to sell, buy, or transfer the minor’s custody for the purpose of engaging in sexually explicit conduct for the production of child pornography and sexual abuse.
Lastly, section 2256 of title 18 of the federal law prohibits the production, distribution, reception, transportation, shipping of images of child pornography, or any form of visual depiction of sexually explicit conduct uninvolving a minor by a person outside the United States and to transmit the child pornography to the U.S.
Federal Child Pornography Law Penalties
A violation of any federal child pornography law is a serious crime carrying severe penalties.
When facing federal child pornography charges, it’s important to enlist the services of a skilled federal criminal defense attorney.
Upon a conviction with child pornography 18 U.S.C. 2251 – sexual exploitation of children, an offender faces a minimum of 15 years in prison and a maximum of 30 years in prison.
Upon violation of federal child pornography 18 U.S.C. 2252 law, the defendant faces a statutory minimum of five years in prison, with 20 years in prison being the maximum.
Sex Offender Registration for Child Pornography Offenses
Upon a conviction with any child pornography offense, the offender is required by law to register with the Michigan sex offender registry, under the SORA act.
Being on the public sex offender registry can be life-altering and significantly affect the quality of your life.
Being on the registry means that you will have difficulties getting a job, finding homes for rent, and having travel restrictions.
It’s vital to ensure that you work only with the best sex crimes attorney, considering these consequences, to minimize the chances of a conviction.
Can a Minor Receive Child Pornography Charges?
While this issue is still legally controversial, it’s not unlikely for a minor to face child pornography charges, and the repercussions are often damaging to the child’s future.
There have been cases in the past where minors have faced child pornography charges. Most culprits, in such instances, are often high school students involved in sending explicit photos or videos of themselves to other minors, a crime commonly known as sexting.
While sexting or sending such explicit content is considered legal among consenting adults, minors can now face charges under child pornography laws.
In other words, a minor who knowingly provides, offers, distributes, or sends a picture, photograph, video, film, or any visual depiction showing a minor engaging in sexually explicit conduct will risk severe penalties upon conviction.
That’s why it’s important to protect your teenager from prison time or sex offender registration by hiring a knowledgeable criminal defense attorney.
DEFENDING YOUR CHILD PORNOGRAPHY CHARGES
While child pornography, child sexual exploitation, or sexual abuse charges are serious and carry severe consequences, having a skilled attorney by your side can help you put up a good fight.
Your skilled defense team can use a variety of defense strategies to fight your charges, which include:
Possession of Three or Fewer Pornographic Images or Video
Subsection (a)(4) and subsection (c) of U.S.C. 2252 provides an affirmative defense to mere possession of child pornography offense charge for persons with one image of child pornography or video, and a maximum of three.
This is a good strategy, especially if the defendant promptly notified law enforcement and took reasonable steps to destroy the material, without sharing it with anyone.
Not Aware Victim was a Minor
For a conviction to happen, the prosecution must prove that the defendant knew or had reason to know that they were dealing with a minor’s image or video.
If your attorney can introduce reasonable doubt in your ability to have reasonably known that the image or video in question was a minor, you may be able to fight your charges.
This defense strategy is efficient where the victims depicted in the child sexually abusive material are fully grown in stature, and hard to tell that they are below the age of 18, from the depiction.
Law Enforcement Misconduct
Law enforcement officers obtain evidence for child pornography cases by searching your home or computer hard drives, in most circumstances. However, the police are only allowed to do that within the law.
When evidence is illegally obtained, for example, without a search warrant or sufficient probable cause, your defense attorney can use police misconduct as a defense strategy to have your charges dropped, even when there is evidence to prove your child pornography offense.
Either way, the outcome of your charges will largely depend on the quality of your defense.
Get a Lawyer for Your Child Pornography Charges Today
If you face child pornography charges in Michigan, Nicole Blank Becker of Blank Law P.C. is the lawyer to call.
Nicole is a sex crimes defense attorney based in Michigan who has dedicated her practice solely to defending sex crimes charges.
She has over two decades of experience in child pornography charges, having done both Michigan and federal law, with a track record of success to back it up.
Your future is dependent on the outcome of your charges. Don’t let your charges define your future.
To hire criminal defense attorney Nicole Blank Becker and have the best on your side, give us a call today or contact us online to book a free consultation.