27 Nov 23

What You Need to Know About Federal Child Pornography Charges

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Last Updated on: 15th December 2023, 10:29 am

Federal Child Pornography Laws

There are several federal statutes that prohibit various activities related to child pornography, including production, distribution, receipt, and possession:1

  • 18 U.S.C. § 2251 criminalizes sexually exploiting a minor for the purpose of producing visual depictions of sexually explicit conduct.
  • 18 U.S.C. § 2252 criminalizes knowingly transporting, distributing, receiving, or possessing child pornography that has traveled in interstate or foreign commerce, including by computer.
  • 18 U.S.C. § 2252A criminalizes knowingly accessing child pornography with intent to view, or knowingly possessing or distributing child pornography, including by computer.

Child pornography is defined federally as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years old).2 This includes photographs, films, videos, drawings, computer-generated images, digital or computer data capable of conversion into a visual image, and more. The depictions do not need to be obscene.

Even suggestive images of minors not engaging in sexual activity may be considered child pornography under federal law if they constitute a “lascivious exhibition of the genitals or pubic area.”3 Courts consider factors like whether the focal point is on the minor’s genitalia or pubic area, whether the setting is sexually suggestive, whether the minor is depicted in an unnatural pose or inappropriate attire, whether the minor is fully or partially clothed, and whether the depiction suggests sexual coyness or willingness to engage in sexual activity.4

Penalties for Federal Child Pornography Convictions

Federal child pornography crimes carry strict penalties, even for first-time offenders:

  • Producing child pornography (18 U.S.C. § 2251) – 15-30 years in prison
  • Transporting, distributing, or receiving child pornography (18 U.S.C. § 2252) – 5-20 years in prison
  • Possessing or accessing child pornography (18 U.S.C. § 2252A) – Up to 10 years in prison

Penalties increase substantially for offenders with prior convictions and for certain aggravating factors, such as the number of images/videos, depicting violence or children under 12 years old, or having a prior conviction for a sex offense against a minor.5

In addition to imprisonment, those convicted often face heavy fines, supervised release, and sex offender registration. Immigration consequences may also apply for non-citizens.

How Federal Prosecutors Prove Child Pornography Charges

Prosecutors must prove the basic elements of the specific child pornography offense beyond a reasonable doubt. For example, for possession under 18 U.S.C. § 2252A, the government must prove the defendant:

  • Knowingly possessed visual depictions
  • The depictions were child pornography
  • The depictions were transported in interstate/foreign commerce or produced using materials transported in interstate/foreign commerce (e.g., computer)
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Since direct evidence is rare, prosecutors often rely on circumstantial evidence like:6

  • Child pornography found on the defendant’s computer or other devices/media
  • Internet records showing visits to child pornography websites
  • Chat logs or emails related to child pornography
  • Payment records for child pornography websites
  • Eyewitness testimony about the defendant accessing child pornography

The government can use various technologies to link the defendant to the illegal files. However, skilled defense attorneys scrutinize the prosecution’s evidence for constitutional violations, procedural defects, unreliable forensic analysis, and other weaknesses.

Defending Against Federal Child Pornography Charges

While child pornography charges provoke moral outrage, even innocent people risk conviction due to the stigma surrounding these cases. A dedicated criminal defense lawyer can pursue legal defenses such as:

  • Lack of criminal intent – Defendants may honestly not realize the files depict minors. The prosecution must prove knowing possession.
  • No knowledge of the files – Illegal files do not necessarily mean the defendant knowingly downloaded child pornography. Trojans, viruses, malware, and other people using the device could be responsible.
  • Misidentification – Experts may dispute whether images depict actual minors or computer-generated content.
  • Unlawful searches – Violations of search warrant requirements or the defendant’s privacy rights may suppress evidence.
  • Entrapment – Undercover agents cannot improperly induce innocent people into committing a crime.

An experienced attorney identifies all viable defenses under the specific circumstances of the case. They negotiate firmly with prosecutors, file suppression motions, retain forensic experts, assemble character witnesses, and take other steps to build the strongest defense.