Oklahoma Criminal Defense Attorney Advocating for Individuals Facing Federal Child Pornography Charges
Child Pornography is widely treated more harshly than any other category of crimes, in some circumstances it is punished more harshly than homicides. Child Pornography possession and distribution is one of the most common types of sex crimes and is punishable by both state and federal law. Child Pornography is a type of crime that takes largely takes place online. Almost all Child Pornography cases originate from an individual downloading Child Pornography images or video files online. In many instances, files are mislabeled and downloaded by accident.
However, if you have possession of these images and files on your computer, you may be charged with a serious offense you never intended to commit. In order to be prepared for your defense, it is important to understand the elements necessary to support a conviction for Child Pornography crimes, the potential punishment ranges for Child Pornography in both state and federal court, as well as available defenses in Child Pornography cases.
Federal Child Pornography Sentencing Guidelines
As stated above, many Child Pornography cases are prosecuted in federal court. Therefore, it is important to understand the applicable federal sentencing guidelines for Child Pornography cases, as they apply in all federal districts across the United States. Federal Child Pornography sentencing guidelines are intended to not only punish the accused, but also protect victims and provide them justice for being victims of child sexual abuse and sex trafficking through this Child Pornography graphic material. For the crime of Child Pornography, these sentencing guidelines are intended to provide justice to the victims of sexual child abuse and trafficking by means of illicit material.
The federal Child Pornography sentencing guidelines take specific details of the underlying events into account in order to apply or exclude adjustments that can increase the punishment range for offenders. Sexual Exploitation of a Minor is one of the most common federal offenses related to Child Pornography. It can be charged in the first, second, or third degree based on the circumstances of the case.
First Degree Sexual Exploitation of a Minor
The most serious Sexual Exploitation of a Minor offenses result in an Indictment for First Degree Sexual Exploitation of a Minor. An Indictment for First Degree Sexual Exploitation of a Minor may result in any of the following circumstances:
- An individual allows, encourages, or forces a minor to engage in sexual activity for live performance or for a video recording
- An individual allows a minor in his care to engage in sexual acts for a live performance or video recording
- An individual transports or assists in the transport of minors across or through a state for the purpose of allowing that minor to engage in sexual activity for the purpose of producing a live performance or video recording
- An individual captures a minor engaging in a sexual act on a video recording or receives financial gain from this activity
First Degree Sexual Exploitation of a Minor is a Class C federal felony and carries a minimum sentence of 73 months and up to 25 years in federal prison. In many instances these cases include multiple counts, which can increase the advisory guideline range or recommended sentence.
Second Degree Sexual Exploitation of a Minor
Although not egregious enough to support an Indictment for First Degree Sexual Exploitation, the following circumstances are sufficient to support an Indictment of Sexual Exploitation of a Minor in the Second Degree:
- An individual conducts, produces, or distributes any visual representation of a minor performing sex acts
- An individual distributes, receives financial gain from, exchanges, or solicits any visual representation of a minor performing sex acts
- An individual assists in the transportation of a minor to be placed in the care of a person producing a visual representation of the minor engaging in sex acts
Second Degree Sexual Exploitation of a Minor is a Class E federal felony and carries a minimum of 25 months and a maximum of 7 years in federal prison. As is the case for First Degree offenses, these cases often include multiple counts and underlying circumstances that often support recommended sentences or advisory guideline ranges that are higher that other cases, which do not involve Child Pornography.
Third Degree Sexual Exploitation of a Minor
Conduct that falls under the umbrella of Sexual Exploitation of a Minor but does not give rise to conduct serious enough for an Indictment in the First or Second Degree is captured by Third Degree Sexual Exploitation of a Minor. The follow conduct gives is sufficient for an Indictment of Third Degree Sexual Exploitation of a Minor:
- An individual possesses a visual representation of a minor engaging in sex acts
- An individual transports material that includes a minor engaging in sex acts
- An individual gains income from the possession of a minor engaging in sex acts
This offense is a Class H federal felony and punishable by a minimum prison sentence of four months and a maximum prison sentence of 4 years in federal prison.
For all federal Child Pornography allegations, it is important to remember Indictments in this area typically involve multiple Child Pornography allegations represented by separate counts addressing each allegation. Multiple charges in federal Child Pornography cases often increase the maximum prison sentence. Additionally, the stigma associated with Child Pornography allegations carries over into federal court. Many federal judges hand out the maximum sentence in Child Pornography cases according to the guideline sentencing range in the case.
What is Child Pornography – Do I need a Child Pornography Attorney?
Child Pornography is any depiction of a minor, or an individual, who appears to be a minor, engaged in sexual or sexually charged content. Therefore, Child Pornography includes photographs, videos, AI generated content, or computer-generated content. The act of altering an image or video to make it appear as if it portrays a minor can be charged as Child Pornography in federal court. However, a defense or exception to the Child Pornography definition is artistic renderings or depictions that are scientific or political. A simple example is an anatomy book that displays the anatomy of a minor child. This falls under the scientific exception to Child Pornography.
Is Intent a Defense to Child Pornography Charges?
Yes, a lack of intent can be a defense to Child Pornography charges in federal court. In order to be convicted of Child Pornography, the government must prove that you had knowledge and intent to possess, distribute, or receive Child Pornography. Intent is a vital element to defending Child Pornography cases, as it is not enough to simply stumble upon Child Pornography and be convicted of one of the federal offenses detailed here.
Federal investigators initiate most federal Child Pornography cases by searching online, joining chat groups, and finding users that are accessing child porn or Child Pornography websites. Federal investigators will often find users that are downloading Child Pornography materials. Federal investigators and prosecutors rarely go after those that accidently access Child Pornography. Rather, they investigate and prosecute individuals that download Child Pornography material to their computer or device or repeatedly accessing Child Pornography websites, which is a clear sign of intent to investigators.
It is difficult for investigators and federal prosecutors to determine intent in isolated incidents. Therefore, the most common fact patterns in federal Child Pornography cases involves hundreds of files downloaded on an individual’s computer, the federal investigator identifies the IP address of the computer, subsequently the physical location of the computer, and obtains a warrant to seize the material. It is crucial to hire an experienced Child Pornography lawyer that can evaluate your circumstance and help you understand your options and likelihood of conviction.
As an additional reference tool, the following are the most common US criminal codes that are the statutory basis for federal Child Pornography prosecutions.
18 U.S.C. § 2251 – Sexual Exploitation of Children (Production of Child Pornography)
18 U.S.C. § 2251A – Selling and Buying of Children
18 U.S.C. § 2252 – Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of Child Pornography)
18 U.S.C. § 2252A – certain activities relating to material constituting or containing Child Pornography
18 U.S.C. § 2256 – Definitions
18 U.S.C. § 2260 – Production of sexually explicit depictions of a minor for importation into the United States
Pornographic images of children are not protected under the first amendment and are illegal. Section 2256, of Title 18, defines Child Pornography as any visual depiction of sexually explicit conduct involving a minor. Visual depictions can include photographs, videos, digital or computer images, which cannot be distinguished from actual minors. Additionally, undeveloped film, that can be converted into visual images also qualifies as Child Pornography and is illegal under federal law.
An even more serious offense under federal law is production or distribution of Child Pornography, which defined under Section 2251. The statute makes it illegal to entice or coerce a minor to engage in explicit content to produce visuals that depict sexual conduct by minors. Prosecution for manufacturing, production, or distribution of Child Pornography carries the harshest punishments under federal law, including mandatory minimum sentences or the requirement that an individual serve a specific duration of time in federal prison.
Defenses to Child Pornography Charges with Help From Child Pornography Lawyers
One of the most common defenses in federal Child Pornography cases is lack of knowledge that the defendant possessed or inadvertently downloaded Child Pornography. The sharing of explicit content online is increasingly common and oftentimes very large zip folders are downloaded that are full of a variety of content, unfortunately including Child Pornography in many instances. This fact pattern raises the common defense of lack of intent or state of mind to possess Child Pornography.
Another common defense in Child Pornography cases is content on a computer system, which the individual under investigation did not download or possess. In a work setting or common access computer, it is possible for one person to illegally download Child Pornography and another individual be attributed with possession of Child Pornography. Hiring a federal Child Pornography defense attorney is essential to defend your freedom and reputation in these very serious cases.
Federal prosecutors rely on evidence obtained by investigators, often the FBI, in order to support a federal Child Pornography prosecution. The evidence in Child Pornography cases is typically obtained as a result of a search and seizure of a person’s computer system at home or at work. Law enforcement must have probable cause and a lawful basis to be in the location they obtained evidence in order for it to be admissible in court. Many of these cases come at the result of a search warrant. However, some federal Child Pornography cases stem from evidence obtained with a warrantless search. In either circumstance your federal Child Pornography defense attorney may be able to raise a suppression issue to exclude necessary evidence in your federal Child Pornography case.
The fourth amendment to the U.S. Constitution requires law enforcement have probable cause and obtain a search warrant, unless exigent circumstances support a warrantless search, to search a location and/or seize property. When a search is performed without sufficient probable cause or without a warrant and the warrant should have been obtained, the Child Pornography evidence in your case may be suppressed and excluded from prosecution in your case. When your federal Child Pornography defense lawyer can show that evidence was illegally obtained in your case and suppress the evidence it makes prosecution in your Child Pornography case very difficult, if not impossible for federal prosecutors.
The three most common defenses in federal Child Pornography cases, listed above, are procedurally complex to effectively present in court. It is important to ensure the federal Child Pornography attorney you hire is experienced in litigating suppression issues and investigating the innocence of clients.
Punishments for Child Pornography Possession or Distribution
Child Pornography crimes are prosecuted in federal and state courts across the country and carry harsh punishments in both state and federal court. First time offenders without any criminal history often face prison sentences greater than 15 years, plus the stigma of registering as a sex offender.
As mentioned above, federal Child Pornography distribution or manufacturing carries a mandatory minimum sentence. In federal sentencing mandatory minimum sentences bind the federal judge to enforce at least a specific number of years in federal prison. The mandatory minimum sentence for Child Pornography manufacturing at the time of writing this article is five (5) years in federal prison.
What Counts as Possession of Child Pornography?
In order to support an arrest and indictment for Child Pornography allegations the FBI or federal law enforcement officers will seek to obtain evidence to support you possessed the computer containing the Child Pornography material. The next and arguably most important factor in federal investigators building a case against you for possession of Child Pornography is proving knowledge of the explicit material depicting minors. Many factors influence federal investigators building a case against someone for intentional possession of Child Pornography; however, one of the most common types of evidence is the confession of the accused.
The government has the burden in every criminal case and that is true in Child Pornography cases as well. The federal prosecutor must prove the content was in fact Child Pornography and that the accused intentionally possessed the content. You have the right to remain silent and avoid self-incrimination. Federal investigators are trained in obtaining confessions. It is in your interest to not say anything to investigators, until you speak with an experienced federal Child Pornography defense attorney.
Your federal defense attorney can evaluate the available evidence with you and advise you of the pros and cons of speaking with federal investigators prior to making this potentially life changing decision. Federal or state charges for Child Pornography are very serious and come with potentially life altering consequences. You should not face this circumstance or any federal investigation alone. Call now at (405) 657-2323 for a free confidential case strategy session with our team regarding your Child Pornography investigation or charges.
What Factors Determine How Child Pornography is Prosecuted?
Manufacturing, distributing, and possession of Child Pornography are all illegal under federal and state law; however, the severity of the charges and accompanying range of punishment is based on the alleged conduct. The section explains the determinations made by federal and state prosecutors regarding the way a Child Pornography case is prosecuted.
Federal vs. State Prosecution of Child Pornography
In general, Child Pornography is more commonly prosecuted at the federal level as the content is shared across state lines under the commerce clause. State prosecutions are generally limited to content created or possessed within the state in question. When content was created beyond the state where the computer or electronic device was found or the original location cannot be determined, the prosecution will most likely occur in federal court.
It is presumed that content crossed state lines or international borders, if the internet was involved in the situation. IP Addressed associated with each computer are almost always involved in federal Child Pornography prosecution. The majority of content shared across the internet is located on a server, which is in a different location than the computer where the content was found.
18 U.S. Code § 2252 defines federal Child Pornography offenses and provides guidelines for prosecution of cases involving Child Pornography.
Was It Done Knowingly Regarding Child Pornography?
Child Pornography falls under the larger category of crimes called sex crimes. In order to be charged with a Child Pornography offense the accused must have knowingly watched, possessed, or shared visual images representing a minor engaged in sexual conduct. This definition encompasses nearly every depiction of a minor involving nudity, even if the minors are not engaged in sexual conduct.
The prosecution must prove beyond a reasonable doubt that the offense involving Child Pornography was intentional, i.e. the person involved knowingly downloaded, shared, or manufactured Child Pornography. In cases that involve a substantial volume of Child Pornography content, intent is less of burden on the prosecution.
In other cases, however, it can be difficult to prove intent to possess Child Pornography, i.e. possession of only one or two files that qualify as Child Pornography or material found on a shared computer.
What Defenses Exist Against Child Pornography Accusations?
Beyond the common defense to Child Pornography accusations listed above, false accusations are a common source of Child Pornography allegations and prosecutions. The following are defenses in those circumstances:
- Mistaken Identity in Child Pornography Cases: another person downloaded, received, manufactured, or distributed Child Pornography on your computer, stole your IP address through a VPN, or otherwise appeared as you and committed the Child Pornography offense.
- Lack of Knowledge in Child Pornography Cases: when your Child Pornography defense attorney can support a defense of lack of knowledge it may mitigate the circumstances and reduce the punishment you will face in your federal or state Child Pornography prosecution.
Child Pornography allegations are very serious and can lead to decades in federal prison and lifetime registration as a sex offender, if convicted. You or your family should contact an experienced Child Pornography lawyer immediately if you have been arrested or are under investigation for Child Pornography. Federal investigators will seek a confession from you and any other incriminating evidence they can obtain. Protect your freedom and your future by contacting an experienced criminal defense attorney before you meet with federal investigators. Call Cannon & Associates NOW at (405) 657-2323 for a confidential and free case strategy session to have your questions answered by Child Pornography prosecution and the road ahead.
Child Pornography FAQ
1. Does Watching Child Pornography Count as Possessing Child Pornography?
Whether viewing Child Pornography on a server or website constitutes possession of Child Pornography is a question of fact. You should immediately contact an experienced Child Pornography defense lawyer, if you believe you are under investigation for possession or distribution of Child Pornography. In Child Pornography cases, it is often presumed that viewing is the same as possessing this content; however, your Child Pornography lawyer may be able to defend against your culpability, if the government’s case cannot meet the necessary elements of the alleged Child Pornography offense. Seek the advice of an experienced federal criminal defense attorney who can examine the circumstances of your case and explain your options to you.
Federal Child Pornography Lawyers | Child Pornography Attorneys
The variety of visual depictions that fall under the definition of Child Pornography are very broad and the volume of content is only increasing with the growing use of the intent and camera phones.
Child Pornography is prosecutable in all 50 states under the specific laws of each state, plus it is a federal offense. United States Code Chapter 110 addresses Sexual Exploitation and Other Abuse of Children, which lays out what constitutes Child Pornography under federal law. Both state and federal Child Pornography laws define sexual exploitation, sex trafficking, receipt, possession, and distribution of Child Pornography.
2. How is Child Pornography Prosecuted in Federal Court?
Two statutes form the basis for almost all federal Child Pornography prosecutions: U.S. Code, Title 18 Sections 2251 and 2252. The following are the federal charged used to prosecute Child Pornography:
- Possession of Child Pornography: the most common offense related to Child Pornography in federal court is possession of Child Pornography. The penalty for this offense is less serious than distribution or production; however, the consequences increase if a victim under the age of 12 years old is depicted in any of the material.
- Receipt of Child Pornography: this offense deals primarily with the use of the intern to obtain Child Pornography material. Although it is possible for this offense to be charged as the result of receiving Child Pornography material through the mail, it is most commonly based on internet activity. This offense also requires knowledge of the material received. Mandatory minimum sentences apply to receipt of Child Pornography and range from five years to twenty years.
- Distribution of Child Pornography: this offense is designed to capture some of the most serious conducted related to Child Pornography offenses in federal court as it is designed to address a person that is contributing to the sharing or dissemination of Child Pornography material. As the title implies, this allegation addresses an accused believed to have distributed Child Pornography to other users, most commonly via a common network (peer to peer network) or the internet. Distribution of Child Pornography also carries a mandatory minimum sentence and is treated more harshly than receipt or possession of Child Pornography by federal sentencing judges.
- Production of Child Pornography: this federal Child Pornography offense is the most serious charge related to this area of federal criminal law. It involves the allegation of sexual abuse of a child and is punishable by a mandatory minimum sentence of 15 years, with a maximum sentencing exceeding 25 years. The factual basis for production of Child Pornography is typically a hidden camera or unknown photography of minors. It is vital to work with an experienced federal Child Pornography lawyer if you or a loved one is facing production of Child Pornography charges.
All of these federal offenses are treated very seriously by federal prosecutors and federal sentencing judges. The mandatory minimum sentences in federal Child Pornography cases are serious and should not be faced lightly. As soon as you believe you are under investigation for Child Pornography, you need to contact a federal criminal defense attorney with experience representing clients facing these circumstances. Early and aggressive defense is key in order to avoid the harshest penalties associated with these offenses. Your Child Pornography lawyer may be able to coordinate a plea agreement with federal prosecutors to minimum the consequences of your circumstance and limit your exposure in your Child Pornography prosecution.
What Should I Do if Accused of a Child Pornography Offense?
The landscaping in facing an investigation or prosecution for Child Pornography is highly complex and time is of the essence in protecting your future. Your options and ability to impact your Child Pornography defense is limited the longer you wait to contact an experienced Child Pornography attorney. The more time federal investigators or prosecutors have your case without communicating with your federal defense attorney they more often they make decisions without considering your perspective and the potential for a resolution with less serious consequences.
One of the most common benefits to hiring an experienced Child Pornography lawyer early in the process is the potential for a plea agreement with the federal prosecutor on your case before an Indictment is presented to the grand jury. Your defense lawyer may be able to reach an agreement that you will only face charges of Possession of Child Pornography, instead of the much more serious charges listed above.
In exchange for your agreement to proceed by Information or Complaint, you may be able to limit your exposure. Avoiding a federal offense with a mandatory minimum sentence is one of the greatest accomplishments you can seek in a federal Child Pornography case. Although this does not mean your case will be dismissed or that you will avoid prosecution all together, it does limit the potential consequences, if your defense lawyer is able to reach an agreement for you to face less serious Child Pornography charges.
How does my Criminal Record impact my Child Pornography Case?
Oklahoma sentencing guidelines increase the punishment range for any defendant with prior felony convictions within the required time frame. Alternatively, individuals without a criminal record face a lesser punishment range on Child Pornography charges in Oklahoma than defendants with a criminal record.
Federal sentencing guidelines are a calculation of the “appropriate sentencing” in any given case. The offense level (based on the crimes charged) and the criminal history score of the defendant determine the sentencing guideline range that the sentencing judge must consider in determining the sentence in any case.
Stated more simply, a first-time offender in a Child Pornography case may face a punishment range of five to 20 years in prison, if they have no criminal record, i.e. a Criminal History Score of One. Alternatively, a defendant with a higher Criminal History Score, under the federal sentencing guidelines, may have a guideline range of 15 to 40 years in prison for the same conduct.
Conclusion on Child Pornography Defense
There are few categories of offenses with a greater negative stigma that Child Pornography charges, in both state and federal court. Sentencing guidelines in these cases are harsher than many violent crimes. Sentencing judges take these cases and the punishments that doll out very seriously. Additionally, applying the defense strategies identified here are complex to apply successfully.
Your Fierce Advocates® at Cannon & Associates are dedicated to fighting for your freedom and ensuring you understand everything along the way in your criminal defense. Whether you or a loved one have already been Indicted for Child Pornography charges or are under investigation, now is the time to seek legal support from an experienced Child Pornography defense lawyer. You do not have to face this circumstance alone. Please give us a call now for a free confidential case strategy session at (405) 657-2323. We look forward to answering your questions and giving you and your family clarity about the process you are facing.
