Child Pornography

Child pornography is a grave offense. It involves producing, sharing, possessing, or viewing explicit images or videos depicting minors in sexual acts. Laws against child pornography target those who possess or share this material and individuals or criminal groups that coerce or hire children to engage in explicit activities, ultimately creating pornographic content.

In pursuing justice and child protection, prosecutors are aggressive regarding child pornography allegations. This approach is grounded in the awareness that child pornography exploits and harms minors, causing profound physical and psychological damage. Consequently, the legal system places great importance on investigating and prosecuting those involved, clearly conveying that this exploitation is intolerable.

Nevertheless, the principle of natural justice remains despite the seriousness of these allegations and the imperative of safeguarding children. Individuals accused of child pornography offenses are presumed innocent until proven guilty. This fundamental aspect of justice guarantees that all accused individuals, irrespective of the crime, enjoy constitutionally protected rights, including the right to a fair trial, legal representation, and the opportunity to present their defense. The Fresno team at California Criminal Lawyer Group breaks down all you need to know about child pornography in California.

Child Pornography as Outlined in California Law

Child pornography in California is addressed under Penal Code Section 311. It renders several related activities unlawful within the state. These prohibited actions include sending, duplicating, transporting, advertising, printing, or possessing child pornography. Furthermore, the law addresses the hiring or persuasion of minors to engage in the production of explicit images, establishing stringent legal boundaries to safeguard minors.

Engaging in any of these actions can result in criminal charges and penalties under California law:

• Producing, possessing, sending, transporting, or duplicating child pornography with intent to distribute (PC 311.1 and PC 311.2) — Committing these activities to distribute child pornography materials constitutes a crime.

• Developing, exchanging, duplicating, or printing child pornography (PC 311.3) — Your knowing participation in activities related to creating or sharing child pornography materials is a criminal offense.

• Hiring, employing, coercing, using, or persuading a minor to participate in the production of pornography (PC 311.4) — Engaging in these actions involving children to create pornographic content is illegal.

• Advertising obscene child pornography for sale or distribution (PC 311.10) — Knowingly promoting or advertising child pornography materials for sale or distribution constitutes an offense.

• Possessing or controlling child pornography involving a person under 18 (PC 311.11) — Possessing or controlling child pornography materials produced by a person under 18 years old is a criminal act.

1. Child Pornography

In the context of these laws, child pornography is any material depicting sexual conduct or sexual activity involving an individual under 18 years of age. The term "material" includes various items, for example, films, negatives, photographs, videotapes, slides, and computer-generated content.

Furthermore, "sexual conduct" is explicit acts like oral copulation, sexual intercourse, anal intercourse, and masturbation.

2. Knowingly

"Knowingly" relates to your mental state and intent regarding prohibited activities. Put simply, it signifies that you were fully aware of specific critical details or circumstances related to your actions.

When prosecutors prove you acted "knowingly," they imply that you possessed awareness or knowledge in one or more of the following areas:

• Age of the minor — You were or should have been aware that the individuals in the explicit material were minors under 18.

• Nature of the material — You knew or should have known that the material in your possession, distribution, or production contained explicit or sexual content featuring minors.

• Intent — In certain instances, "knowingly" extends to your intent. For example, if you knowingly distributed explicit material with the intent to profit from it or to promote it, this demonstrates an awareness of the consequences and implications of your actions.

When prosecutors establish that you acted "knowingly," it eliminates the option of claiming ignorance or a lack of awareness as a defense.

Generally, in cases involving child pornography, ignorance or a lack of awareness is not considered a valid defense.

3. Obscene

Under PC 311(a), "obscene matter" pertains to a material that, when considered as a whole, is judged by the average person using contemporary statewide standards to appeal to prurient interest. Put simply, it means that the material strongly and inappropriately interests you in sexual matters, going beyond what is socially acceptable.

This definition is essential for determining whether specific content is considered obscene under California law. It relies on three key components:

• Prurient interest — The material must appeal excessively to your sexual interests, engaging you in a way considered abnormal or unhealthy by societal standards. Prurient interests are a heightened and unhealthy fascination with sexual matters or explicit content characterized as lewd, lascivious, or obscene. This entails a fixation on sexual pleasure or arousal that society views as excessive, abnormal, or detrimental to an individual’s well-being by prevailing standards.

• Patently offensive — The material must portray or describe sexual conduct in a manner that you would find blatantly offensive, exceeding what is deemed socially acceptable by contemporary statewide norms.

• Lacks serious value — The material must lack significant literary, artistic, political, or scientific value in your judgment. In other words, it must offer you nothing substantial beyond its explicit content.

Penalties If Convicted of Child Pornography Under California Law

Child pornography is a wobbler offense in California. You will face misdemeanor or felony penalties if convicted. The penalties also depend on what violation you are convicted of.

1. Possession and Distribution of Child Pornography

PC 311.1 Violations

Violations of PC 311.1 result in misdemeanor or felony penalties upon conviction.

Misdemeanors are punishable by:

• Up to one year in jail.
• A fine of up to $1,000 or both.

Felonies are punishable by:

• Up to one year in prison.
• A fine of up to $10,000 or both.

PC 311.2 Violations

Prosecutors can pursue misdemeanor or felony charges for a violation of PC 311.2.

Misdemeanor violations attract the following penalties upon conviction:

• Up to one year in jail.
• Up to $2,000 in fines or both.

Felony violations attract the following penalties upon conviction:

• 2, 3, or 6 years in prison.
• Up to $100,000 in fines or both.

2. Producing or Duplicating Child Pornography

A violation of PC 311.3 is punishable by the following penalties:

• A jail sentence of up to one year.
• A fine not exceeding $2,000 or both.

3. Involving a Child in Creating Pornographic Material

Convictions for PC 311.4 violations attract both misdemeanor and felony penalties.

Misdemeanor offenses are punishable by:

• Up to one year in jail, and
• Up to $2,000 in fines or both.

Felony offenses are punishable by:

• 3, 6, or 8 years in prison, and
• Up to $50,000 in fines or both.

4. Advertising Child Pornography

Advertising or distributing child pornography in violation of PC 311.10 is a felony offense. A conviction will result in the following penalties:

• 2, 3, or 4 years in prison.
• A fine of up to $50,000 or both.

5. Possession and Control of Child Pornography

Possession of child pornography in violation of Penal Code 311.11 is a felony. First-time offenders will face the following penalties:

• Up to one year in jail, and
• Up to $2,500 in fines.

Subsequent offenders will be required to serve a prison sentence of 2, 4, or 6 years.

However, your penalties will increase if you:

• Possess over 600 images, with at least 10 featuring a prepubescent minor, a minor under 12 years old, or
• Portray sexual sadism or masochism involving an individual under 18 years old.

You will serve a prison sentence of 16 months, 2 or 5 years if the above facts are proven.

Note: Prosecutors do not have to prove obscenity to establish a violation of PC 311.11.

Federal Child Pornography Laws

Child pornography cases can be pursued at the federal level under specific circumstances. Federal authorities typically take the lead when these offenses:

• Involve crossing state lines.
• Have international dimensions, or
• Require a more comprehensive and consistent approach to prosecution.

While many child pornography cases are addressed at the state level, federal involvement becomes more probable in situations involving interstate or international trafficking or when the case's complexity surpasses the state's resources. Federal and state law enforcement agencies often collaborate on child pornography cases.

Federal law includes several critical provisions aimed at addressing child pornography comprehensively:

1. Sexual Exploitation of Minors

18 U.S.C. § 2251 criminalizes various aspects of child pornography, including its production, distribution, receipt, and possession with intent to distribute. It pertains to the sexual exploitation of minors through visual depictions, for example, photographs, videos, and other media.

A violation of this section attracts the following penalties:

• First-time offenders face imprisonment of 15 to 30 years.
• Offenders with prior convictions can be imprisoned for 25 years to life.
• Possession with intent to distribute can lead to fines of up to $250,000 for individuals and $500,000 for organizations, along with imprisonment of up to 20 years.

2. Transportation and Distribution of Child Pornography

18 U.S.C. § 2252 focuses on child pornography's transportation, distribution, and receipt, including cases that involve crossing state or national borders.

• First-time offenders can be imprisoned for up to 20 years.
• Offenders with prior convictions may face 10 to 40 years in prison.

3. Child Pornography Conducted Via Computers

18 U.S.C. § 2252A expands upon previous laws. It targets child pornography offenses involving computer-generated images. The law covers the possession, distribution, and receipt of child pornography. This includes provisions related to child exploitation enterprises.

• First-time offenders can be imprisoned for up to 20 years.
• Additionally, they will be required to pay fines as directed by the courts.
• Offenders with prior convictions may face 10 to 20 years in prison.

Other important provisions include:

• 18 U.S.C. § 2256 — This section provides definitions for key terms related to child pornography, including the definition of a "minor" as an individual under 18 years of age.

• 18 U.S.C. § 2257 — This provision imposes record-keeping requirements on producers of sexually explicit materials. It ensures the verification of performers' ages, contributing to the prevention of child exploitation in the adult entertainment industry.

• 18 U.S.C. § 2258 — This section establishes mandatory reporting requirements regarding child pornography. Individuals are obligated to report any knowledge of child pornography to law enforcement.

Sex Offender Registration

Compliance with registration requirements is mandatory if you have been convicted of child pornography-related offenses. These offenses are categorized under Tier II of Penal Code 290, also recognized as Megan's Law.

Tier II offenders need to register as sex offenders for a minimum period of 20 years.

Defenses You Can Assert in a Child Pornography Case

A conviction on child pornography charges can result in significant penalties. Therefore, you must engage a criminal defense attorney to help you fight the charges. Below is a look at some of the defense strategies he/she can use for your case:

1. The Content Was for a Legitimate Purpose

Child pornography laws exempt sexually explicit materials used in legitimate contexts. These exemptions recognize that not all depictions involving minors are intended for illegal or exploitative purposes. Some of the activities courts consider include:

• Scientific purposes — Scientific research focused on human development or psychology, which requires visual materials, including images or data involving minors, could be considered exempt. This recognizes that genuine scientific research consists of the examination of age-appropriate materials.

• Medical purposes — Materials used for valid medical reasons, for example, educational or clinical training, research, or documentation, are typically exempt from child pornography laws. For instance, anatomical images of minors in medical textbooks or training materials could qualify for this exemption.

• Educational activities — Materials used for educational purposes, for example, within educational institutions like schools, colleges, or universities, could enjoy exemption from child pornography laws. This includes educational resources that incorporate age-appropriate images or materials for instructional purposes.

Note: These exemptions are not absolute. The genuine intent and context behind using these materials play a significant role in determining whether an individual's actions fall within these exemptions.

2. You Were Entrapped

In child pornography cases, asserting entrapment argues that law enforcement induced your involvement in the crime, which you would not have committed otherwise. This defense claims that law enforcement coerced or persuaded you to engage in illegal activities that were not in your nature.

This defense aims to prove that law enforcement used tactics like persuasion, pressure, threats, or promises to compel your participation in a child pornography-related offense. This could involve demonstrating that officers initiated contact, provided materials, or actively encouraged illegal conduct.

You must establish that you had no prior intention or inclination to commit the crime. This means showing that, without the involvement of law enforcement, you would not have engaged in child pornography-related activities.

This defense strategy underscores the significant role played by law enforcement or government agents in instigating the crime. It asserts that your actions were a direct consequence of their inducement.

In evaluating the entrapment defense, courts typically apply an objective standard. They assess whether the government's actions would have prompted a reasonable person to commit the crime.

While asserting this defense, you should present various forms of evidence. This includes communications, records, or witness testimonies. All these should illustrate your lack of predisposition and the extent of law enforcement's involvement.

3. Illegal Search and Seizure

Individuals' constitutional rights can be at risk if law enforcement conducts searches without a warrant or probable cause. There are opportunities to show the court that these rights were violated. If successful, this could lead to the dismissal of charges, securing your freedom.

There are strict limitations on law enforcement's actions, regardless of your belief in rights violations.

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. Evidence obtained through an illegal or unreasonable search and seizure can be excluded from a criminal case. This could result in reduced or dismissed charges.

One common situation where this applies in child pornography cases involves searches of a person's computer. If the police search your computer without a valid warrant or meet the legal requirements for warrantless searches, any evidence from that search could be inadmissible in court.

Further, even if a search warrant is obtained, if it is flawed or fails to meet legal standards, evidence obtained under it could also be subject to suppression.

4. There is No Clear Possession

In child pornography cases, this defense argues that you did not have exclusive control over illicit materials. This approach challenges the idea that mere proximity or device access constitutes possession under the law.

The core of this defense is to demonstrate the absence of direct and exclusive control over child pornography materials. It underscores the possibility that others could have had access to the device or location where the materials were discovered. Therefore, this creates uncertainty about the actual possessor.

Defense attorneys aim to cast doubt on the prosecution's ability to definitively prove your sole possession and control over the illicit materials. This could involve:

• Questioning the chain of evidence custody.
• Showing that multiple individuals had access to the device or
• Highlighting any inconsistencies in the evidence presented.

Courts often require the prosecution to establish a clear connection between you and the illicit materials. Thus, this defense seeks to challenge and weaken this connection.

5. Challenging the Child’s Age as a Defense

Another defense strategy involves questioning the age of the individual depicted in explicit materials. This defense seeks to challenge the prosecution's ability to conclusively prove that the person in the explicit materials was a minor at the time of the depiction. Defense attorneys could cast doubt on the accuracy of age assessments, the methods used for age determination, the reliability of documentary evidence, or the potential for technological alterations to the images.

By introducing reasonable uncertainty regarding the age of the depicted individual, this defense strategy aims to sow doubt about the charges. It can be an effective way to contest child pornography allegations.

Immigration Consequences and Impact on Gun Rights

Child pornography is a crime involving moral turpitude (CIMT). These crimes are inherently morally reprehensible offenses that often entail dishonesty, fraud, or depravity. Child pornography offenses specifically fall within this category due to their inherent nature of exploiting and victimizing minors through sexually explicit materials.

Convictions for crimes involving moral turpitude carry significant legal repercussions. These consequences extend to immigration matters, professional licensing, and the potential for difficulties in securing certain types of employment or benefits.

Additionally, a child pornography conviction carries significant repercussions, including the forfeiture of firearm rights.

Penal Code Section 29800 stipulates that individuals convicted of a felony in California or any other state or federal jurisdiction are barred from possessing, purchasing, or receiving firearms within the state. Violating this statute may lead to criminal consequences, including potential imprisonment.

Contact a Criminal Defense Attorney Near Me

Providing mitigating information is crucial in persuading prosecutors to refrain from filing formal child pornography charges. Prosecutors, in line with their duty to uphold justice and protect children, carefully weigh the evidence before proceeding with charges. If you can present compelling evidence or information demonstrating that the alleged offense resulted from a misunderstanding, lack of intent, or other mitigating factors, it can significantly influence their decision-making process.

At the California Criminal Lawyer Group, we will help you effectively navigate these situations and safeguard your rights throughout the legal proceedings.

Moreover, should the case progress to trial, our Fresno attorneys are well-equipped to mount a robust defense against the charges. We have an array of legal strategies and resources to challenge evidence, scrutinize witnesses, and advocate vigorously for our clients. The overarching objective is to establish reasonable doubt regarding the charges or, if legal grounds exist, persuade the court to dismiss the case entirely. We commit to tirelessly protecting your rights and exploring all available avenues for defense throughout the trial process.

If you or a loved one is being investigated or is facing child pornography charges, call us immediately at 559-712-8377 for assistance. Our team is ready to assist.