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Federal Law: Possession and Distribution of Child Pornography

One of the most common forms of child sexual abuse is child pornography. A person can face child pornography charges for producing child pornography, possessing child pornography, or distributing child pornography, all of which are forms of child sexual exploitation.

Regardless of which child pornography charge you are charged with, child sexual abuse is a serious offense under both state and federal law. Upon conviction, an offender could be looking at possible prison time, jail time, hefty fines, or both.

On top of that, an offender must fulfill mandatory sex offender registry requirements that can have a lifetime impact. Sex offender registration comes with many other consequences, including limitations on where you can live or work, along with a damaged reputation.

Federal Law: Possession and Distribution of Child Pornography

People often wonder is child pornography a state or federal law? Depending on the prevailing circumstances, the prosecution of child pornography cases, and other sexual abuse crimes, can happen in state or federal courts. A child pornography charge can also start in a state court, but end up in a federal court system, meaning it is possible to face child pornography charges on a state and federal level.

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If you are facing child pornography or other child sexual exploitation charges, be sure to have one of the best sex offender lawyers on your side, even when you believe you are innocent. The right attorney will help you expose the weaknesses of the prosecution’s case and fight to protect your rights.

What is Child Pornography Under Federal Law?

Child pornography is defined under Section 2252 of Title 18, United States Code as any visual depiction of sexually explicit conduct involving a minor. As used in this section of the federal law, a visual depiction includes a photograph, video, computer-generated or digital images indistinguishable from a minor, and images that have been altered to look like a minor.

Federal child pornography offenses are not limited to developed image depictions. An undeveloped photo or video film, or any form of data stored on an electronics device or a computer that is convertible into an image or video of sexually explicit conduct involving a minor, is considered child pornography.

sexually explicit

As used under federal law, sexually explicit conduct is not limited to a child engaging in sexual conduct or in a listed sexual act. Any depiction of a naked minor can be classified as child pornography if deemed sufficiently sexually suggestive or the depiction of the child is deemed sexual exploitation by the investigating agency.

A minor under this section refers to a person under 18-years old. While the age of consent for sex may be lower than 18 in some states, under federal law, images of sexually explicit conduct of persons that have attained the legal age of consent in their respective states, but are younger than 18, are considered child pornography.

Federal Law on Possession of Child Pornography

Is it against the law to look at child pornography?

Federal law prohibits access or possession of any sexually explicit depictions of a minor engaging in sexually explicit conduct or any form of child sexual exploitation.

person to be convicted

For a person to be convicted of possession of child sexually explicit material under federal law, the government must prove beyond a reasonable doubt that:

  • The accused knowingly possessed child porn with an intent to view it
  • The possession of child pornographic material must have been made possible by interstate or foreign commerce mail or computer facility
  • The person depicted in the visual depiction was a minor
  • The accused was reasonably expected to know that the person depicted in the material in question was a minor

Federal possession of child pornography charges are categorized into two different sections, depending on the age of the child victims. These include:

  1. Possession of child sexually explicit material involving a minor that is 12-years old or older
  2. Possession of child pornography material involving a prepubescent minor (a person younger than 12-years old)

Penalties for Possession of Child Pornography

Possession of Child Sexually Explicit Material Involving a Minor that is 12-Years or Older

Under federal law, a person found in possession of child sexually explicit material with children over the age of 12 will be guilty of a class D felony upon conviction. The offense carries a penalty of not more than 10 years in prison for first-time offenders, without considering other aggravating factors.

For offenders with a prior conviction, a conviction will result in up to 10-20 years in federal prison. Besides prison time for this form of child exploitation, the judge is required, under federal laws, to impose a minimum of five years of supervised release upon completing any prison time.

Possession of Child Sexually Explicit Material Involving a Prepubescent Minor (Person Younger than 12 Years)

Federal possession of child pornography depicting a minor below the age of 12 is classified as a class C offense under federal law. Convicted offenders could face up to 20 years in prison and a lifetime of monitored release.

For offenders with prior convictions, the minimum penalty is 10 years in prison. Additionally, the sentencing court is required, under the law, to impose a supervised release of not less than five years following statutory confinement.

Receipt of Child Pornography

Sometimes the government can argue a person in possession of child pornography must have received it at some point.

Consequently, they may press federal charges of receiving child pornography, which carry a much harsher penalty than possession of child pornography, being a maximum of 40 years in prison.

Possible Defenses for Possession of Child Pornography

When facing possession of child pornography or child sexual exploitation charges, more often than not the prosecution will have in their hand the evidence to show that you did possess child pornography.

Proving your innocence under such circumstances can be pretty tricky. It is, therefore, a good idea to hire a skilled child pornography lawyer when in such a situation. A  lawyer familiar with these types of crimes can help get your charges reduced to a lesser one.

possible defense strategies

Some possible defense strategies for possession of child porn include:

Affirmative Defense

Federal child pornography laws provide an affirmative defense to a possession of child pornography charge, if:

  • The offender has less than three pieces of child pornography images or videos
  • The offender does not show the child pornographic material to anyone else other than law enforcement, takes deliberate steps to destroy the material, and informs law enforcement agencies

Not Child Pornography

Sometimes the images or video content in question could depict an individual that would be rather difficult to establish that they were below the age of 18.

Under such circumstances, the defense can use “not child pornography” as a defense strategy.

The same defense strategy could be used to lessen a charge of child pornography involving children under 12 years of age into possession of child sexually explicit material with exploited children above the age of 12, which carries a less severe penalty.

Law Enforcement Misconduct

Law enforcement agencies must follow the laid-out rules when conducting their investigation or making an arrest. Failure to follow the laid-out rules can be used as a defense to dismiss charges, even when there is evidence of this form of child exploitation.

For example, the police are required by law to have a search warrant before searching a suspect’s home, office, vehicle, computer, or anything else owned by the accused. Searching without a warrant can result in the evidence of child exploitation obtained during such a search being tossed out.

Other times police may conduct a sting operation to nab child pornography offenders on the internet. If you are arrested and charged with child pornography charges through a police internet sting, your internet sex crime attorney could look into the possibility of using entrapment as a viable defense strategy.

Substantial Assistance

While substantial assistance may not be a defense for this form of child exploitation, the laws allow the government to ask the court to lessen its penalty for a conviction if an offender agrees to cooperate with the government to bring to justice other individuals involved in the sexual exploitation of children.

Federal Law on Distribution of Child Pornography

Under federal law, it is a criminal offense for a person to knowingly receive or distribute child pornographic materials facilitated by any means of interstate or foreign commerce or that has been shipped, mailed, or transported in or affecting interstate or foreign commerce or using a computer.

This section of the law also prohibits the reproduction of copies of the child pornography material received for distribution by any means or enabled through any facility of interstate or foreign commerce mail.

The distribution of child pornography can take many forms, some of which may seem insignificant. However, as insignificant as any form of distribution of child pornography may seem, it can carry severe statutory penalties.

Sharing Material

Allowing another person to copy a child pornographic image or video can count as distribution of child pornography.

When making a ruling on United States v. Royal in 2013, the 9th circuit court ruled that the defendant’s act of allowing a child to make copies of child pornography stored on his computer constituted a federal child pornography offense. The same case applies to selling or giving away copies of visual depictions of children engaging in sexually explicit conduct.

Forwarding Messages and File Sharing

The mention of child pornography offenders often brings to mind a predator in a dark room sharing child sexual abuse images for profit. However, even innocent sexting is a crime and can constitute a distribution of child pornography charge if the content shared depicts children engaging in sexually explicit conduct.

Forwarding Messages and File Sharing

It is not unusual to find teenagers breaking sexting laws and facing charges of distributing and producing child pornography for simply sharing explicit images or video files of themselves with peers.

Persons Outside United States Government’s Jurisdiction

Federal child porn laws are not limited to persons within the U.S. borders.

Under federal child pornography laws, it is a criminal offense for any person outside the United States to receive, ship, transport, produce or distribute child pornography with the intent to transmit or transport child pornography content into the U.S.

Penalties for Distribution of Child Pornography

Upon a conviction of receiving child porn with an intent to sell or distribute child pornographic material, convicted offenders will be looking at a minimum of five years to a maximum of twenty years in federal prison.

With that said, an offender with prior convictions is likely to face a harsher penalty that includes a prison time of not less than 15 years, and a maximum of 40 years in prison.

Possible Defenses for Distribution of Child Pornography

Like a possession of child pornography offense, defending distribution of child pornography charges can be a pretty serious crime and require working with a lawyer who is well versed in these types of crimes.

Simply put, a defense for distribution of child porn is similar to a defense for possession of child porn.

Aggravating Circumstances in a Child Pornography Offense

Sentencing for both possession and distribution offenses can vary significantly if any or several aggravating circumstances exist during the commission of the offense.

Some of the factors that would be considered as aggravating and that could potentially affect sentencing are:

  • Use of the internet or computer in the commission of the offense
  • The number of images or files involved
  • Exhibition of sadistic and masochistic forms of sexual abuse involving children

Sex Offender Registration

Following the enactment of the Sex Offender Registration and Notification Act (SORNA) in 2006, every state is required to keep a database of convicted sex offenders. These databases are referred to as sex offender registries.

Upon a conviction with most sexual abuse offenses, offenders must register with their respective states as sex offenders.

If convicted of a child pornography offense, an offender may be required to register, under sex offender registry laws, for a period of between 10 years to a lifetime, depending on the underlying circumstances.

Failure to register as a sex offender can result in a misdemeanor charge for first-time offenders. However, repeat offenders will be guilty of a felony, upon conviction, which carries severe penalties, including time in jail.

Are You Facing Federal Sexual Abuse Charges? Criminal Defense Attorney Nicole Blank Becker Can Help You with Your Case!

Child pornography charges can come with life-altering consequences upon conviction and should never be approached without an attorney.

With that being said, not just any attorney will do. You will need one that is well-versed in federal and state sex crimes.

Nicole Blank Becker of Blank Law, PC is a federally accredited criminal defense attorney based in Michigan and solely focused on sex crimes.

Nicole work side-by-side

Focusing exclusively on sex crimes means sex crimes is all she does, giving Nicole a deep insight into both federal and state sex crimes laws, putting her way ahead of her peers.

Nicole previously worked as an assistant prosecutor and Chief of the Sex Unit in Macomb County. Based on her experience, passion, and understanding of the other side, Nicole will get the most favorable outcome for your child sexual abuse charge, or any other sex crime charge you may find yourself charged with.

To hire Nicole Blank Becker and get her on your side, call Blank Law, PC at (248) 515-6583 or contact us online to book a free consultation.

3150 Livernois Rd. Suite 126
Troy, MI 48083
(248) 515-6583
law@nicoleblankbecker.com

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We serve the following counties: Macomb County, Oakland County, Wayne County, Washtenaw County, Ingham County, Lapeer County, Genesee County, Livingston County, etc.

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