At Eisner Gorin LLP, we have represented numerous defendants in California State and federal courts who are charged with child pornography related offenses, including simple possession and distribution. Oftentimes, by the time the defendant is charged, the government has conducted a lengthy investigation involving electronic records and forensic computer analysis such that the defendant cannot realistically claim they were not in possession of contraband images depicting minors engaged in sexual activity.
If you are being accused of violating California state or federal child pornography laws, it's a very serious matter that you should not take lightly. You should speak to an experienced child pornography defense lawyer to guide you through this difficult process.
Effective legal representation even in cases where guilt or innocence is not in dispute is critical to achieving the best possible outcome. In our experience, there are several important steps which a criminal defense attorney can take in advocating for a sentence which recognizes important mitigating factors in the client's life and hopefully avoids jail time.
A child pornography conviction can completely change your life. In California, a conviction could result in up to six years in state prison and a $2,500 fine. Even more, you will be required to register as a sex offender for the rest of your life, which will put you in the in the same category as those convicted of child molestation and rape.
Learn more information below on California state and federal child pornography laws or you can contact our criminal defense law firm for advice from our experienced child pornography defense attorneys. Let's review below the California state and federal child pornography laws and defense strategies to avoid jail or a conviction.
California Child Pornography Laws - Penal Code 311
Child pornography laws are described under California Penal Code Section 311. In basic terms, it's a crime to knowingly distribute, possess, produce, publicize, duplicate, or sell child pornography in any form.
As you can see, there are a variety of child pornography crimes. Every act, whether it's distributing, producing, viewing or downloading child pornography, is described in different subsections of Penal Code Section 311.
However, regardless of the various subsections, every child pornography offense has one thing in common. Each requires the prosecutor to prove the following elements of the crime convict you:
- You knowingly possessed images depicting minors engaging in sexual acts
- You knew the images showed someone under 18 engaging in sexual acts
This means to be convicted of possession of child pornography, it has to be proven beyond a reasonable doubt, that you knowingly possessed or controlled any matter that shows someone under 18 years old engaging in sexual conduct or simulating sexual acts.
Federal Child Pornography Laws - 18 U.S.C. § 2252
Title 18 U.S. Code Section 2252 criminalizes the willful possession, creation, distribution, and transportation of child pornography. The Child Pornography Prevention Act of 1996 defines "child pornography" as any visual depiction of a minor engaging in sexually explicit conduct, whether it's made or produced by electronic, mechanical, or other means. The statute prohibits the possession, receipt and distribution of sexual images of children.
In simple terms, if you willfully possess, distribute, or access child pornography with intent to view, it's a violation of federal law. Anyone convicted could be sentenced to up to 15 years in federal prison for each offense, as well as being named on relevant sex offender registries.
The criminal investigation of child porn cases come in many forms. Often, there are undercover operations in chat rooms where federal agents pose as adults who are interested in child pornography images of videos.
A closely related federal offense is the Sexual Exploitation of Children under 18 U.S.C. 2251 which punishes anyone who attempts to persuade a minor to produce child pornography.
Defense Strategy to Avoid Jail Time
A significant factor in determining the likelihood of avoiding jail time for a defendant charged with a child pornography offense is the volume and nature of the contraband images or videos seized by law enforcement.
If the client was in possession of a small number of images depicting teenagers, for instance, this would be viewed as much less serious by most prosecutors than possession of a large number of images depicting younger children.
The defendant's other conduct which may indicate a predatory disposition toward children is also relevant. If there is evidence that the defendant took steps to meet children for sex in real life, or communicated with children directly on the internet, the impetus to seek jail time is much stronger based on the need to protect the community.
In attempting to persuade the government to forgo incarceration in child pornography cases, critical mitigating information is key. Quite understandably, a prosecutor's primary concern is typically with the risk that the criminal conduct will recur, or even escalate.
To address this reasonable concern, defendants may enroll in a treatment program or seek individual or group therapy from an experienced mental health professional specializing in child pornography issues.
While also hopefully addressing the underlying mental health issues which lead an individual to possess these contraband images, this type of intensive therapy, when appropriately documented, is a powerful mitigating factor which demonstrates the defendant's commitment to rehabilitation and prevention of recidivism.
Challenging Validity of Search Warrant
At the same time as our attorneys present the strongest mitigation position possible to the government, we also push back on the legal basis for the charges. In the vast majority of child pornography prosecutions, the government obtains evidence of the crime through the execution of a search warrant during which they typically seize one or more electronic devices belonging to the defendant to be forensically analyzed by specialists working for law enforcement.
Challenging the validity of these search warrants is therefore a critical step in defendant a child pornography case. Often, the probable cause supporting the search consists of posts allegedly connected to the defendant's IP address or other identifying information transmitted through the internet.
The connection between the alleged online activity and defendant personally may be too tenuous or speculative to justify the search of the defendant's residence and seizure of his or her property.
In those cases, a motion to suppress can be filed to prevent the use of the seized evidence in court. Even if the motion is not a sure-fire winner, the prospect of losing a suppression hearing may further encourage the prosecutor to offer a favorable resolution to the defendant.
California State vs. Federal Child Porn Case
Another factor to consider in sentencing for child pornography crimes is whether the prosecution is being pursued by California State authorities or by the federal government.
In State court, it is far more likely to achieve a no-jail outcome for the defendant, particularly in a relatively minor instance of possession of child pornography where the defendant has no prior history of unlawful conduct. Federal sentencing, as discussed elsewhere in our blog posts, is much harsher and much more frequently involves a period of incarceration in federal prison.
The take away for potential clients or family members should be that every case is different and the outcome will depend on the particular facts of the case, including the criminal conduct, the defendant's background, the defendant's willingness and motivation to seek treatment immediately and commit to ongoing therapy, the courthouse in which the case is filed, whether the case is a State or federal prosecution, among others.
Experienced Child Porn Defense Lawyers
Our experienced criminal defense attorneys will assess the case, the possible defenses, and the opportunities for a favorable settlement to advise the client about the realistic possible outcomes.
If you, or a family member, is charged with one of the serious child pornography related offenses under California state or federal law discussed here, contact our criminal defense lawyers for a consultation to begin preparing a defense geared toward achieving the best possible outcome in court.
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