Safeguarding children is a top priority for society, and child pornography laws have been crafted with this purpose in mind. These regulations specifically target activities including possessing, creating, or distributing explicit material featuring minors. The primary goal of these laws is to thwart the sexual exploitation and abuse of children, acknowledging their inability to give informed consent and the potential for severe psychological and physical harm.
Cases involving child pornography draw significant attention from prosecutors due to the profound and enduring harm they can inflict on children. This heightened focus is driven by the gravity of the offenses and the imperative to deter these activities. Consequently, defense attorneys are crucial in ensuring accused individuals receive fair and proper representation during legal proceedings. Rely on the California Criminal Lawyer Group should you face child pornography charges in Bakersfield.
Child Pornography Under California Law
Child pornography seeks to address various issues involved with child pornography. These issues include the possession, creation, and distribution of child pornography. Let us look at the different laws that address the crime.
Note: Children or minors are yet to attain 18 years of age.
- Penal Code 311.1
Penal Code Section 311.1 makes it a crime to knowingly distribute, produce, or have obscene material that includes individuals under 18 personally engaged in or simulating sexual conduct. Per the law, you are guilty if:
- You knowingly take part in activities like possessing, sending, bringing, preparing, publishing, duplicating, producing, or printing representations that contain obscene material and
- You aimed at exhibiting, distributing, or exchanging it, and you're aware that the material shows a person under 18 personally engaged in or simulating sexual conduct.
There are exceptions to this rule, providing immunity for certain activities. This includes:
- Actions carried out by law enforcement and prosecuting agencies while investigating and prosecuting criminal offenses
- If the possession, distribution, publishing, preparation, production, or printing were done for legitimate medical, scientific, or educational activities.
The section recognizes that it does not apply to material depicting a legally emancipated child under 18. This includes lawful conduct between spouses when one or both are under 18.
a) Penal Code 311.2
Penal Code Section 311.2 addresses the production, distribution, sale, and possession with the intent to distribute material depicting sexual conduct involving minors. This section differentiates between misdemeanor and felony offenses based on the nature of the actions and the awareness of the depicted content.
Knowingly distributing, producing, or possessing obscene matter for a first offense results in a misdemeanor. Conversely, committing a felony occurs when knowingly participating in bringing, sending, preparing, bringing, possessing, producing, publishing, or printing obscene matter with the intent to distribute while being aware that it depicts a person under 18 personally engaging in or simulating sexual conduct.
Moreover, distributing the material to both adults and children is a violation of PC 311.2.
b) Penal Code 311.3
An individual is deemed guilty of sexual exploitation of a child when he/she is knowingly involved in the creation, printing, duplication, or exchange of representations, including photos, films, or computer-generated images, depicting a person under 18 engaged in sexual conduct.
In this context, "sexual conduct" covers various acts like sexual intercourse, masturbation, penetration, bestiality, exhibition of genitals, sadomasochistic abuse, and defecation or urination for sexual stimulation.
Note: PC 311.3 excludes employees of commercial film developers from its application, given they act within their employment scope and adhere to employer instructions. This exclusion does not apply if an employee benefits financially from the activities of the commercial film developer.
c)Penal Code 311.4
You violate PC 311.4 when you are aware or reasonably informed of an individual being a minor and engaging that minor in activities, including developing, duplicating, or exchanging explicit material.
Further, it is a felony to deliberately promote, employ, use, persuade, induce, or coerce a minor under 18 to pose or model for explicit material. It does not matter whether you acted alone or with others and for commercial purposes.
Similar to subsection (b) provisions, involving a minor in posing or modeling for explicit material, regardless of commercial purposes, is also a felony. Notably, proof of commercial intent is not necessary to establish a violation of this section.
d) Penal Code 311.11
You commit a serious felony under Penal Code Section 311.11 if you knowingly possess or control explicit material depicting a person under 18 engaged in or simulating sexual conduct.
Harsher penalties apply if your material has over 600 images, with ten or more involving a prepubescent minor or a minor under 12. The penalties also apply if the material depicts sexual masochism or sadism involving a person under 18. Notably, each photo or picture counts as one image, and each video or movie counts as 50 images.
Proof of obscenity is not needed to establish a violation. Furthermore, exemptions include statues, drawings, figurines, or films rated by the Motion Picture Association of America. Live or recorded telephone messages transmitted as part of a commercial transaction are also exempt.
Let us define some terms to help you better understand the offense.
Child Pornography
Child pornography is essentially any material depicting sexual conduct or activity involving an individual under 18 years of age. This includes photographs, films, slides, negatives, videotapes, and computer-generated equipment. The broad definition aims to cover different media forms used to create, distribute, or possess explicit content involving minors.
Acting Knowingly
You are only guilty of child pornography if you act knowingly. This means you must have been consciously aware of and intentionally involved in activities related to child pornography. These include creating, distributing, or possessing explicit material featuring minors.
Additionally, it is crucial to establish that you were aware of both the victim's status as a minor and the explicit nature of the material. Both factors, knowledge of the victim's age and the explicit content are fundamental in determining guilt in cases involving child pornography offenses.
Obscene Material
Obscene material is content, including images, writings, or other expressive forms, that is collectively considered offensive and sexually explicit. The evaluation of obscenity involves a legal analysis and is contingent upon prevailing community standards.
In the United States, the legal criteria for obscenity are primarily based on the three-part Miller test, established by the Supreme Court in Miller v. California (1973). This test defines material as obscene if:
- The average person, following contemporary community standards, perceives that the material, in its entirety, appeals to an excessively inappropriate interest in sex.
- The material portrays or describes sexual conduct in an overtly offensive manner.
- The material, as a whole, lacks significant literary, artistic, political, or scientific value.
In this context, "prurient interest" signifies an unhealthy fascination with sexual matters, including sex, nudity, or excretion.
Federal Child Pornography Laws
You also risk facing federal charges for child pornography, primarily if the activities related to child pornography are interstate or part of the federal government’s efforts to address the crime. Here is a look at some of the laws that address child pornography.
a) Sexual Exploitation of Children
Engaging in sexually explicit conduct with a minor, intending to produce visual depictions or transmit live depictions using interstate or foreign commerce or within U.S. territories, constitutes a criminal offense per 18 U.S.C. § 2251.
This prohibition extends to parents, legal guardians, or individuals with custody or control of a minor. They violate this law when they knowingly permit the child to participate in sexually explicit conduct for creating visual depictions or transmitting live depictions.
Violators of this section will face significant penalties, including fines and imprisonment ranging from 15 years to life. The severity of punishment hinges on factors such as prior convictions and the specific circumstances of the violation.
b) Activities Related to Material Involving Sexual Exploitation of Minors
Under 18 U.S.C. § 2252, knowingly possessing, transporting, or shipping explicit material involving a minor engaged in sexual conduct, using interstate or foreign commerce, by mail or computer is a criminal offense. This statute also prohibits selling or possessing this material with the intent to sell it. Prosecutors focus on specified locations or when the material is transported using interstate or foreign commerce means, including by computer, involving a minor in explicit conduct.
Conviction under this law results in fines, imprisonment for up to 10 years, or both. If the material features a prepubescent minor or a child under 12, penalties extend to a fine and imprisonment for up to 20 years. For individuals with a prior conviction, imprisonment can range from 10 to 20 years.
c) Record-Keeping Requirements
18 U.S.C. § 2257 mandates that individuals producing sexually explicit material involving actual conduct and using interstate or foreign commerce must keep records for each performer. These records should include the following:
- The performer's identification
- Birth date, and
- Other identity-related information
Furthermore, the law requires a statement to be affixed to every copy of this material, indicating where the records can be found. Failing to create, maintain, or provide factual information in these records or refusing inspection is unlawful.
Penalties for breaking 18 U.S.C. § 2257 can mean up to 5 years in prison for a first offense. If you commit the same offense after a prior conviction, convictions result in imprisonment ranging from 2 to 10 years.
Fighting Child Pornography Charges
Challenging the child pornography charges requires a tailored approach. Your criminal defense attorney will settle on a defense strategy that will result in the best legal outcome, depending on the facts of your case. Here is a look at some of the common defenses he/she can use:
a) No Pornographic Material
Child pornography is precisely defined by law. The definition considers factors like the age of the involved individuals, the explicit conduct's nature, and other relevant criteria. Presenting evidence or arguments that refute the material's alignment with the specified criteria in the legal definition of child pornography can be a valid defense. This could include challenging the depicted individuals' age, questioning the explicit nature of the content, or disputing other elements outlined in applicable laws.
b) You Possessed the Material for Legitimate Purposes
California laws allow for specific exemptions regarding the legitimate possession of child pornographic materials. If you can demonstrate that your possession aligns with these legal exemptions, it serves as a valid defense against the charges.
Consider the following key points:
- Meeting legal requirements — Ensure that your possessions comply with the specific legal requirements outlined in California laws. Clearly understanding and providing evidence of adherence to these requirements strengthens your defense.
- Purpose and context — Clearly illustrate a legitimate purpose for possessing the material, whether for educational, medical, scientific, or other lawful reasons. Gathering evidence that supports these purposes adds substantial weight to your defense.
- Professional or artistic use — If the material serves a professional or artistic purpose and its possession is justifiable within these activities, it significantly contributes to a valid defense. Documentation or evidence supporting this professional or artistic use is crucial.
- Consent or authorization — Proving explicit consent or authorization for possessing the material becomes a powerful element in your defense strategy.
Note: California law generally does not provide blanket exemptions solely based on an individual's occupation or role, including for police officers. However, law enforcement activities involving explicit materials as part of investigative duties are usually considered within the scope of official responsibilities.
c) You Did Not Act Knowingly
Proving a lack of knowledge about the nature or content of the materials can be a viable defense strategy. This defense centers on demonstrating that you lacked the necessary awareness regarding the presence of child pornography. This then challenges the crucial element of intent in the alleged criminal activity.
You can employ the following approaches:
- If there is any documentation, communication, or record indicating your unawareness of the material's content or nature, gather and present it as compelling evidence.
- Statements from individuals present during the alleged offense, testifying to your lack of knowledge, can significantly bolster your defense.
- If the materials were stored on a device or platform beyond your direct control or access, arguing your ignorance of their presence becomes a valid point.
- In cases where the explicit nature of the content was not immediately apparent or recognizable, asserting that you had no reason to believe it constituted child pornography can be a persuasive argument.
d) You Were Entrapped
Law enforcement agencies have intensified their efforts to combat illegal activities related to child pornography by implementing enhanced sting operations in online spaces. These operations involve undercover officers posing as potential offenders to identify and apprehend individuals engaged in illegal online activities, like the production, distribution, or possession of child pornography.
The primary objective is to proactively target and address criminal behavior, specifically within the realm of online child exploitation. Through strategies like monitoring online platforms, conducting investigations, and deploying decoy operations, law enforcement aims to identify and apprehend those involved in illicit activities.
While these increased online sting operations reflect a proactive law enforcement approach, they raise concerns about potential entrapment. Entrapment occurs when law enforcement induces or persuades individuals to commit a crime they were not predisposed to commit. In online sting operations, a delicate balance exists between legitimate law enforcement practices and actions that could be perceived as entrapment.
If you believe you have been entrapped, you could raise this as a defense in court. You need to establish two critical elements while using this defense:
- Inducement by law enforcement and
- A lack of predisposition to commit the crime without law enforcement influence or encouragement
Note: The success of an entrapment defense depends on the specific facts of the case and the court's determination of whether entrapment indeed occurred.
e) Police Officers Violated Your Fourth Amendment Rights
You can challenge the legality of the search and seizure in connection with the case. If you can prove that the search violated your Fourth Amendment rights, the evidence obtained through an illegal search will be deemed inadmissible in court. This, in turn, weakens the prosecution's case. This defense relies on demonstrating that law enforcement exceeded the bounds of the law in obtaining the materials in question.
This could lead to charges in the case being mitigated or dismissed altogether. For instance, if law enforcement searched an individual's computer without a valid warrant or a flawed or defective warrant.
Penalties for Child Pornography
Penalties vary depending on the charges brought forward.
a) Possession of Child Pornography
A violation of Penal Code 311.11 is a felony violation.
Knowingly possessing or controlling explicit materials depicting a person under 18 engaging in or simulating sexual conduct. The offense is punishable by:
- An imprisonment of up to one year
- A maximum fine of $2,500 or both.
Repeat offenders will face a prison sentence of two, four, or six years.
If aggravating factors are present in your case, a conviction will result in:
- A prison sentence for 16 months, or two or five years,
- A maximum fine of $2,500 or both.
The aggravating circumstances include:
- The matter contains over 600 images violating subdivision (a), including ten or more photos involving a prepubescent minor or a minor under 12 years.
- The matter portrays sexual sadism or sexual masochism involving a person under 18.
b) Distribution of Child Pornography
If you are convicted of a misdemeanor violation, you will face the following penalties:
No more than one year in jail
A fine not exceeding $2,000
If you are convicted of felony charges, you will face the following penalties:
- Up to six years in prison
- A fine of no more than $100,000
You will likely face felony charges if you have prior convictions, especially those related to child pornography.
If the courts find you guilty of an intent to distribute child pornography to a minor, you will face the following penalties:
Convictions from misdemeanor charges include the following:
- No more than one year in jail
- Fines not exceeding $1,000
Should you be convicted on felony charges, you will likely face the following penalties:
Note: You could also face the penalties outlined above if you are found guilty of producing pornographic material.
Registration as a Sex Offender
Following a child pornography conviction, mandatory sex offender registration is mandated. The courts could require you to register as a:
- Tier One, which imposes a minimum 10-year registration requirement
- Tier Two, which sets a minimum 20-year registration requirement, or
- Tier Three, which imposes a lifetime registration requirement
The tier depends on the specific details of your case. The severity and nature of the offense are critical factors in determining the applicable tier, as per the relevant legal provisions.
Impact on Immigration Status
Child pornography convictions significantly impact non-citizens. You will face legal repercussions and potential adverse effects on your immigration status.
For individuals who are not citizens of the country where charges are brought, these convictions could lead to grave consequences like deportation, visa cancellations, or complications in future immigration processes.
The negative implication of child pornography convictions is that the offense is deemed a crime involving moral turpitude (CIMT). In immigration law, a CIMT refers to offenses considered contrary to accepted moral standards.
Find an Experienced Child Pornography Criminal Defense Attorney Near Me
Child pornography convictions come with severe consequences, emphasizing the necessity of enlisting an adept criminal defense attorney. Joining forces with an experienced legal professional significantly boosts your chances of crafting a robust defense against these charges.
The Bakersfield team at California Criminal Lawyer Group will meticulously scrutinize the specifics of your case. We will delve into evidence, witness statements, and the circumstances surrounding the charges. Based on this scrutiny, we will formulate a tailored defense strategy. We could negotiate with the prosecution in certain instances, seeking reduced charges or alternative resolutions through plea bargaining for a less severe offense.
Throughout the proceedings, we will guide you, furnishing information on legal processes and potential outcomes and aiding you in making well-informed decisions. We work towards the most favorable outcome for your case.
Contact our team today at 661-750-8230 for more information.
