18 U.S.C. § 2251, 2251A, 2252, 2252A, 2260
Federal Child Pornography Laws
Child pornography is a serious issue and the law of the United States goes to great lengths to prevent people from creating, possessing, and transmitting it. Any examination of the relevant law involves various sections of title 18 of the United States Code.
18 U.S.C. § 2256
18 U.S.C. section 2256 has many of the important definitions related to child pornography. It provides the following:
- A “minor” is any person under 18 years of age
- Generally, “sexually explicit conduct” means actual or simulated:
- Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
- Sadistic or masochistic abuse; or
- Lascivious exhibition of the genitals or pubic area of any person
- “Child Pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
- The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct
- Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
- Such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
Due to the broad range of conduct and material prohibited, and the complex definitions, a licensed criminal defense attorney should be consulted for a true understanding of any child pornography case.
What is clear, however, is that the government goes to great lengths to ensure that no form of child pornography falls through the cracks.
18 U.S.C. §§ 2252, 2252A, 2252B
The above sections explain the kinds of activities related to child pornography and exploitation of minors. They include:
- Sending/offering to send/transporting/distributing
- Visual depictions involving the use of a minor engaging in sexually explicit conduct
- And was transported/transmitted using a method that substantially affects interstate commerce, travels across state lines or foreign borders, or uses the mail and/or Internet.
What this means is that nearly any conduct related to the production, transmission, or possession of child pornography is prohibited under federal law. While one must act “knowingly,” meaning that one must know the contraband or illegal nature of the item in question, it usually is not very difficult to show that a person knew they had explicit images of a minor. Oftentimes, as is typical with these sorts of cases, the sheer volume of content, search terms used to obtain them, and communications with others, can demonstrate that a defendant not only knew the images were child pornography, but that the defendant intentionally sought them out.
Defenses to child pornography often focus on the “knowing” element above. Any evidence suggesting that a defendant did not know the contraband nature of the content in question will be used to suggest reasonable doubt to a jury or thoughtful prosecutor. However, most defenses are highly fact dependent and should be examined by a licensed criminal defense attorney.
We have some guidance about a potential affirmative defense. If you stumble across child pornography, have no more than 3 items, did not let anyone else see it, immediately contacted law enforcement, and then allowed law enforcement access to the material, or destroyed the material, then you may have a defense for the material’s possession. This is also a highly fact dependent issue and one should not rely on it alone in an attempt to sanitize the possession of questionable material. Instead, contact a licensed criminal defense attorney.
Since there are many forms of conduct that are forbidden, penalties range from as little as 5 years in federal prison, to as many as 40 years in federal prison, plus fines and civil penalties. These penalties often change based on how much contraband is found, the criminal history of the individual defendant, and the ages of minors involved. Consult a licensed criminal defense attorney to calculate your true exposure.