Child Pornography Laws

A conviction for possessing, producing, or distributing child pornography may have permanent consequences. In addition to a long prison term, a defendant may be required to register as a sex offender. This can hinder them in areas as vital as employment, education, housing, and personal relationships. If you are suspected of a crime involving child pornography, you should not talk to the police or prosecutors about your circumstances. Instead, you should contact an attorney who can handle any interactions with law enforcement on your behalf and develop any available defenses.

What Is Child Pornography?

Child pornography usually consists of images or videos of a minor engaging in sexual activities. You can be charged with a crime for having these materials, or for making or distributing them.

Types of Child Pornography Crimes

Federal laws apply to child pornography offenses that involve interstate or foreign commerce. Notably, a crime involving the use of the internet likely will fall within federal jurisdiction. 18 U.S. Code Section 2256 broadly defines child pornography as any visual depiction of a minor engaging in “sexually explicit conduct.” This phrase extends beyond portrayals of sexual intercourse to behaviors such as masturbation or simply the “lascivious exhibition” of the anus, genitals, or pubic area.

Section 2251 prohibits the production of child pornography. This often involves using, persuading, or coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct. Section 2252 prohibits the possession, distribution, and reception of child pornography. For example, the statute forbids knowingly possessing (or accessing with intent to view) material containing a visual depiction of a minor engaging in sexually explicit conduct. Attempting or conspiring to violate one of these statutes may subject a defendant to the same penalties as an actual violation.

States have enacted their own sets of child pornography laws. One of these is Article 263 in the New York Penal Law, which defines several offenses involving “sexual performance by a child.” These include using a child in a sexual performance, promoting or possessing a sexual performance by a child, or facilitating a sexual performance by a child with alcohol or drugs, among other offenses. Meanwhile, Florida Statutes Section 827.071 describes offenses such as using a child in a sexual performance, promoting a sexual performance by a child, or possessing, controlling, or intentionally viewing child pornography.

Examples of Child Pornography Crimes

The following hypothetical narrative may be disturbing or upsetting to some readers.

Consider a situation in which Phil finds his 16-year-old stepdaughter doing drugs. He promises her that he will not tell her mom if she allows him to shoot an erotic video of her. Phil emails the video to his friend Patrick, who uploads it to the internet. A visitor to the site, Paul, downloads the video and stores it on his hard drive.

Each of these defendants might face charges related to child pornography. For example, a prosecutor might charge Phil with production, Patrick with distribution, and Paul with possession. If Phil and Patrick had previously agreed to distribute the video online, they might face conspiracy charges as well.

Offenses Related to Child Pornography Crimes

Other offenses that may arise in situations similar to those supporting child pornography charges include:

• Child molestation: numerous forms of sexual misconduct related to children, such as sexual touching
• Statutory rape: sex with a person under a certain age, who is considered incapable of giving consent
• Incest: sexual conduct involving certain relatives, such as parents and children

A defendant also could face simultaneous prosecution for child pornography crimes in federal and state court based on the same conduct.

Defenses to Child Pornography Charges

Some defenses to these charges may be relatively straightforward. For example, a defendant might argue that the people depicted were not minors, or that the material does not meet the statutory definition of child pornography. For example, the California child pornography possession statute provides an exception for drawings, figurines, statues, or any film rated by the Motion Picture Association of America.

A defendant also might argue that they lacked the mental state required for a conviction. Maybe they accidentally viewed child pornography when they clicked on a link that gave no indication that it contained child pornography. If they promptly navigated away from the website, this might provide a strong defense.

In more unusual cases, a defendant might have been unaware that they had child pornography on their computer. Maybe a coworker who shared access to the computer downloaded the file, or maybe an ex with a grudge downloaded the file to get the defendant in trouble. Sometimes a hacker might install content on someone else’s computer without their knowledge as well.

A defense called “entrapment” shields a defendant from liability for a crime that they were induced to commit by law enforcement. As the U.S. Supreme Court explained in one child pornography case, the government cannot “originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.” To succeed in an entrapment defense, the defendant must not have been predisposed to engage in the criminal conduct.

Further defenses might take procedural forms. Perhaps law enforcement seized materials from the defendant’s home or computer through a search that violated the Fourth Amendment to the Constitution. This protects citizens from unreasonable searches and seizures. A Fourth Amendment violation may result in the exclusion of evidence obtained during the search, which could prevent a prosecutor from proving the charge.

Penalties for Child Pornography Crimes

The federal statute prohibiting the production of child pornography imposes a very harsh penalty: 15-30 years in prison in most cases. Distributing, receiving, or selling child pornography, or possessing it with the intent to sell, generally carries a prison sentence of 5-20 years. Possession of child pornography under federal law generally does not carry a mandatory minimum sentence, but a defendant may spend up to 10 years behind bars. The potential maximum sentence doubles if the minor was under 12. (A defendant with certain prior convictions may face a tougher sentence for any of these crimes.)

States also crack down hard on this conduct, although sometimes less hard than the federal government. A Florida defendant convicted of possessing child pornography could face up to five years in prison, while using a child in a sexual performance or promoting a sexual performance by a child carries up to 15 years. Possessing child pornography in Texas generally carries a potential prison term of 2-10 years, while promoting child pornography (or possession with intent to promote) generally carries a potential prison term of 2-20 years. Distributing, viewing, or possessing child pornography in Pennsylvania carries up to seven years, while producing child pornography carries up to 10 years.

Last reviewed July 2024