Federal Child Pornography - 18 U.S.C. § 2252
Child pornography is considered a serious federal crime that victimizes children and will typically result in harsh legal punishments if convicted. The laws against child pornography are some of the strictest in the federal court system and covered under 18 U.S.C. § 2252. If you are facing any type of federal offense related to child pornography, you will need an experienced federal criminal defense attorney representing you. At Eisner Gorin LLP, we are well-versed in federal child porn laws and will ensure your rights are protected throughout the entire legal process. In basic terms, child pornography is any visual imagery that depicts children under 18 years old in sexual situations for the purpose of sexual stimulation. This includes actual pictures or videos of minors engaging in any explicit sexual activity or graphic nudity. It’s only considered child pornography if the person in the images or videos is indistinguishable from an actual child. This means that an ordinary person who is viewing the depiction would reasonably conclude the depiction is of an actual minor who is engaged in sexually explicit conduct (18 U.S.C. § 2256). However, it does not include visual depictions that are drawings, cartoons, paintings, sculptures, or computer-generated images. Under 18 U.S.C. 2252, depiction must actually be child porn with real minors. Virtual child porn was held protected by the first amendment by SCOTUS in Ashcroft v. Free Speech Coalition, which is why the federal statues all include the provision about actual depiction now. It’s important to note that it is considered child pornography if the person involved was a minor when the images were actually created, or even if a minor’s image was use to create or modify the images.
Peer to Peer Networks
Peer to peer networks create a substantial troubling area of child pornography laws under the federal system. If federal prosecutors are able to prove you were responsible for the distribution of child pornography, you can expert a much more severe sentence. In many cases, people who are using peer to peer networks are not even aware that accessing these networks will open their computer files to other members in the network for downloading files. This means that if another network member, or federal investigator, is able to download child pornography material from your computer through this network, you not only had possession of child pornography, but might also be found guilty of distribution of child pornography. Now that we are covered a basic overview of federal child pornography laws, let’s examine the legal definitions below.
Federal Child Pornography Laws
Title 18 of the United States Code, Section 2252 criminalizes the willful possession, creation, distribution, and transportation of child pornography. This code section provides for severe criminal penalties, as we will discuss below. If you or a family member has been charged child pornography in federal court, in violation of 18 U.S.C. § 2252, early intervention by an experienced federal criminal defense attorney is critical. To better understand this code section, and its application, it is helpful to begin with the language of the statute itself. Subsection (a) of Section 2252 defines categories of persons and conduct which are covered by the law. The first category is, “any person who—
Transports, Receives, Distributes Child Pornography
Knowingly transporting means you shipped child pornography by using interstate commerce, which can include your computer or by a mailing an visual depiction of a minor engaging in sexually explicit conduct. It also involves the transportation of child pornography across State lines, or internationally. As with other federal criminal offenses, this jurisdictional element is critical to understand. Purely intrastate conduct may not trigger the federal government’s law enforcement powers, and would instead be prosecuted by a State government agency. See related information: Child Pornography. Also of note is the requirement in subsection (a)(1)(B) that the conduct depicted in the visual image actually involve minors. As stated above, this means that cartoons or drawings, for instance, which depict child pornography, are likely not covered by this law as they do not actually depict minors engaged in sexual contact. Consult with a Los Angeles federal criminal defense lawyer at our law firm for additional information. Section 2252 also covers anyone who knowingly receives, or distributes child pornography images by the same interstate commerce mentioned above, such as by computer or mail.
Whereas the previous subsection dealt with the transportation of contraband images, this subsection covers both the receipt and the distribution of the same images. This could be as simple as downloading child pornography from a website, or sharing child pornography with other internet users through a file sharing service.
Sale of Child Pornography
Subsection (a)(3), in turn, addresses the sale, or possession with intent to sell, of child pornography images. Subsection (a)(4) criminalizes the mere possession of child pornography. Once again, in both subsections, the jurisdictional requirements are present to ensure that this is a federal crime, and not one that falls under purely State jurisdiction. For that reason, Subsection (a)(3) offenses must either occur in the territorial jurisdiction of the United States. This also includes land or buildings that are owned by the U.S. Government where you knowingly sell or posses with intent to sell child pornography images. Again, this includes any visual depiction of minors that are mailed or transported by interstate commerce, including your computer.
Subsection (b) of Section 2252 prescribes the penalties for violating the previously discussed subsections. It states that “whoever violates, or attempts, conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years. However, a second or subsequent violation is punishable by up to 40 years in federal prison. Violators of subsection (a)(4), the portion dealing with mere possession, is punishable by a maximum of 10 years. However, if any of the contraband images portray children under the age of 12, the maximum punishment is increased to 20 years’ imprisonment. Convictions for second of subsequent offenses of mere possessions carry 10 to 20 years in federal prison.
Our Los Angeles federal criminal defense lawyers can use a variety of legal defenses to fight your federal child pornography charges. These include:
Possession of less than 3 images or videos - Subsection (c) provides an affirmative defense to a charge of mere possession pursuant to subsection (a)(4). This complete defense to the charges is available for those who possessed less than 3 contraband images or videos, and promptly either notified law enforcement and provided them access or took reasonable steps to destroy the items without sharing them with anyone else. This defense will not be available in the typical prosecution under this code section, but does provide a safe harbor for those who, for example, inadvertently download only one or two offending images.
Lack of knowledge of intent - In order for the federal prosecutor to convict you on federal child pornography charges, they must be able to prove you knowingly and willfully dealt with sexual explicit images of minor. This means they have to show you specifically knew the child was a minor and you accessed the content on purpose. Our federal criminal lawyers may be able to show you were reasonably unaware the person depicted in the images was under 18 years old, or you accidentally accessed the images, it’s not an uncommon event to click on the wrong link, or download an email attachment with malware or a virus, without actually knowing what it contained. If our attorneys are successful on creating some reasonable doubt, you could avoid a conviction on the federal child pornography charges.
Misconduct by law enforcement – Typically, evidence in child pornography cases is obtained by searching your home or computer hard drive. However, law enforcement are only legally allowed to conduct this search after they have obtained a search warrant, your consent, or some type of an emergency justification. Therefore, without one of these methods, the evidence is illegally seized and can’t be used in court. Additionally, misconduct by law enforcement can include entrapment, meaning their behavior, such as threats or harassment, caused you to engage in behavior you would not have otherwise committed.
History of Success in Child Pornography Cases
We know that every child pornography case has its own set of unique facts and circumstances, which is why we are dedicated to thoroughly reviewing all the specific details in order to develop an effective defense strategy. Our Los Angeles federal criminal defense law firm has a track record of success defending our clients against child pornography charges. For example, in Los Angles Superior Court, our client was charged with numerous counts of possession of child pornography, which carried substantial jail time and mandatory sex offender registration. After aggressive negotiations with the prosecutor, our lawyers were able to reach a settlement requiring no jail time, instead counseling, and no sex offender registration.
In another case in downtown Los Angles Superior Court, our client, who was a licensed legal professional, was charged with unlawful possession of child pornography. This case involved a situation where hundreds of unlawful child pornography images were found by law enforcement. After negotiating with the prosecutor, we were able to secure a plea bargain where our client served no jail time, and only received probation.
Call a Federal Child Pornography Defense Lawyer
As you have seen above, prosecution for federal child pornography charges under Title 18 U.S.C. Section 2252 exposes you to decades of potential imprisonment in federal prison. If you have been accused of violating federal child pornography laws, you need to contact an experienced federal criminal defense attorney at Eisner Gorin LLP immediately. We will protect your rights even before the court process begins. We first need to review the details of your case. We offer a free immediate response. Contact our law firm at 877-781-1570.
Related Pages: Sexual Exploitation of Children | Selling or Buying of Children