Penal Code 311.4 PC - Employment of a Minor for Pornography
Child pornography is a serious crime in the State of California, accompanied by severe penalties, whether you're making it or distributing it.
To this end, California specifically makes it a felony to employ, coerce, or persuade anyone under 18 to participate in pornography or otherwise to sell or distribute it as defined under Penal Code 311.4.
Depending on the circumstances, you could face up to 8 years in state prison if you're found guilty of this crime. You will also be required to register as a sex offender.
If you intended to profit from the pornography, the penalties include three, six, or eight years in prison. If you did not have a commercial purpose, the maximum penalty is three years in prison.
PC 311.4 says, “(a) Everyone who, with the knowledge that a person is a minor, or who, while in possession of any facts based on which they should reasonably know they are a minor, hires, employs, or uses the minor to do or assist in doing any of the acts described in Section 311.2, shall be punished by imprisonment in the county jail and fined.”
Subsection (b) says that anyone who coerces a minor under the age of 18 years or any parent or guardian of a minor under their control who knowingly permits them to engage in posing or modeling for purposes of preparing any image, film, or videotape containing sexual conduct by a minor is guilty of a felony.
Subsection (c) covers the crime of knowingly promoting or employing minors to engage in modeling or posing to prepare any images, films, or live performances involving sexual activity.
Subsection (d) says that “sexual conduct” means any actual or simulated act of sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, or similar act. Let's review this state law further below.
Overview of PC 311.4
Generally speaking, PC 311.4 makes it a crime to involve minors, children under age 18, in the making or distributing of “obscene matter.”
The term “obscene matter” is broadly defined as offensive depictions of sexual conduct and is a matter of debate considering California's well-known porn industry.
However, when children are involved in any state of the production or distribution of it, the definition of “obscene matter” is obvious. Involving children in pornography, whether by having them participate in it or sell it, is a crime in California.
Specifically, PC 311.4 makes it a crime to do either of the following:
- Engage a minor in the production or distribution of obscene matter as described in Penal Code 311.2 PC, or
- Knowingly promote, employ, use, persuade, induce, or coerce a minor to pose or model alone or with others depicting any sexual conduct, whether actual or simulated.
For purposes of the law, the “matter” described in the term “obscene matter” refers to virtually any type of representation or physical/digital storage, including film, filmstrip, photograph, negative, slide, videotape, computer hardware/software, data storage, or even computer-generated imagery.
“Sexual conduct” encompasses a broad range of actual or simulated activities, including intercourse, oral/anal sex, masturbation, bestiality, or exposure of private parts for sexual stimulation.
What Are the Penalties for PC 311.4?
Violations of PC 311.4 are generally severe offenses with significant penalties attached if you are convicted. The severity of the sentence depends on the circumstances of the crime, as discussed below.
Employing a minor to assist in exhibiting, distributing, or selling pornographic material (no sexual conduct involved) is considered a “wobbler” offense. This means it can be charged either as a misdemeanor or a felony and the penalties include the following:
- A misdemeanor conviction may result in up to one year in jail and a fine of up to $2000.
- A felony conviction may result in 16 months, two years, or three years in prison.
- Repeat offenders face a penalty enhancement of an additional fine of up to $50,000.
Employing, inducing, or coercing a minor to participate (pose, model, or act) in child pornography is a felony offense. The penalties depend on the circumstances behind the production of the obscene matter:
- If you show you had no intent to distribute the pornography commercially (e.g., for personal use): you could face 16 months, two years, or three years in prison.
- If the pornography was intended for commercial use: you could face three, six, or eight years in prison.
What About Sex Offender Registration?
Suppose you are convicted of any violation of PC 311.4, regardless of severity. In that case, you will be required to register as a sex offender with the State of California and to re-register every year or every time you move. This can impact where you're allowed to live and work.
- If you're convicted of a misdemeanor, you'll register as a Tier 1 offender, meaning you'll have to be on the registry for ten years.
- If you're convicted of a felony, you'll be a Tier 3 offender and must remain registered for life.
What Are the Defenses Against PC 311.4?
As serious as these charges are, you may still have some recourse to lodge a compelling defense if you're accused of a crime under PC 311.4.
An experienced California criminal defense attorney can help determine which defense will be most helpful to your case. The common defenses are discussed below.
Perhaps we can argue that no minors were employed. If, for example, your participants appear young but were at least 18 years old at the time they helped make or distribute the pornography, you can't be convicted under PC 311.4.
Perhaps we can argue that you reasonably believed all participants were over 18 years old. For example, maybe a participant presented you with a convincing-looking fake ID to show they were over 18.
Perhaps we can argue that you didn't know you were distributing pornography. For example, maybe you were distributing videos or films without knowing what was on them and inadvertently hired a minor to sell them.
Perhaps we can negotiate with the prosecutor for reduced charges or a case dismissal. Maybe through prefiling intervention, we can persuade the prosecuting agency not to file formal criminal charges in the first place, called a “DA reject.”
You can contact our law firm for an initial case review via phone or the contact form. Eisner Gorin LLP is based in Los Angeles, CA.
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