In many people’s minds, nothing is more loathsome than a crime against a child, and child pornography is one of the worst. It stirs up strong emotions in people. The person who is accused can find themselves ostracized from their social circles and their lives ruined if they are unable to clear their name.
Right now, Child pornography is at the forefront of many people’s minds. Several high-profile cases have been documented in the media and several very visible scandals have been splattered across social media and news programs around the world.
The public hates it, but they hate the person accused of it even more.
A conviction of child pornography is more than a prison sentence or being placed on the National Sex Offender Registration and Notification System. The social stigma that you will face will make it nearly impossible to live a normal life. It can affect your home, work, school, and relationships.
It could keep you from being around children – including your own. It can destroy your relationships and make it nearly impossible to get or hold a job. That is why you need a child pornography defense lawyer who is experienced and knowledgeable. The Litvak Law Firm has successfully defended clients facing child pornography charges. When you need an attorney on your side who is aggressive and well versed in the laws surrounding child pornography. Attorney Litvak will work hard to get the best possible outcome for you.
Overview of Child Pornography Offenses
Child pornography images have absolutely no protection under the First Amendment rights. Under federal law it is considered to be illegal contraband which falls under the blanket term “child exploitation.” Under federal laws, Section 2256 of Title 18, United States Code, defines child pornography as:
Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
What is important to note here is that the definition of “sexually explicit conduct” from a legal standpoint is not strictly confined to images that show the child engaged in an activity of a sexual nature. An image of a naked or partially naked child can also be considered child pornography if it can be construed as sexually suggestive.
The Code defines a “minor” as any person under 18 years old and the sex acts can be actual or simulated. It does not matter what the age of consent is in the state where the offense occurred. In the eyes of the law, anyone who is younger than 18 years old and engaged in any form of child pornography is a minor, thus making the act illegal.
At the state level, the definition may vary somewhat, but not by much. The law, both federal and state, looks harshly upon those who exploit children and view child pornography as one of the most despicable, heinous of all actions.
Federal Child Pornography Offenses
For child pornography offenses to fall under federal jurisdiction, they must meet specific criteria. The occurrence of the offense in interstate or foreign commerce makes it a federal case. Some examples of this include transporting child pornography across state or international borders via:
- Physical transport of facilitation of the transport of child pornography
- Utilizing the U.S. Mail Service
- Utilizing other common carriers including FedEx, Airborne Express, DHL, etc.
The internet has added another layer to the situation. Nearly 100% of the time, child pornography is a federal offense when the internet is involved. Whether it is used to create it or distribute it, it typically becomes a federal issue when you turn on that computer or electronic device and connect to the World Wide Web (or the Dark Web).
Child sex trafficking falls under federal child pornography laws as well. A parent, legal guardian, or person who has custody or control of a minor as defined by the federal child pornography laws is prohibited from buying, selling, or transferring custody of that minor with the intent of creating child pornography.
Also, anyone who is outside of the U.S. and knowingly engages in the act of producing, transporting, receiving, distributing, or shipping child pornography with the intent to transport, distribute, or import the images into the U.S. will also be prosecuted under federal child pornography laws.
Finally, it does not matter if the images are destroyed or deleted. Under U.S. federal law, an individual can still be prosecuted.
New York Child Pornography Offenses
Under the New York Penal Code, Article 263, is it illegal to produce, promote, distribute, and knowingly possess any image of a child engaged in a sexual performance. There are two important definitions here:
- Sexual performance by a child – Any sexual conduct that is simulated or actual as any performance or part thereof by a child.
- Child as defined by New York laws – An individual who is less than 16 years old, but in some cases may be less than 17 years old.
A person who is aware of the content and character of the performance of a child younger than 17 years old and yet induces or authorizes or consents to the child’s engagement in the sexual performance, can be charged with child pornography.
Promotion of sexual performance by a child is a separate charge. To be found guilty of that crime the person must produce, promote, or direct the performance that involves the child younger than 17 who is engaged in sexual conduct while knowing the character and content of that performance.
New York law also prohibits the possession of a sexual performance by a child. The term performance, as defined by Section 263 of the New York Penal Code is “any play, motion picture, photograph, or dance.” It also includes “any other visual representation exhibited before an audience.”
The promotion and possession of an obscene sexual performance by a child is another charge that falls under New York’s child pornography laws. Section 235 of the New York Penal Code requires that material or performance must meet three qualifications in order to be labeled obscene:
- the average person, applying contemporary community standards, would find that its “predominant appeal is to the prurient interest in sex”.
- it depicts actual or simulated sexual intercourse or other sexual conduct in a “patently offensive manner”; and
- considered as a whole, it lacks serious literary, artistic, political, and scientific value. Penalties for promotion and possession offenses do not vary depending on the obscene or non-obscene nature of the material in question.
The crime of facilitating a sexual performance by a child with a controlled substance or alcohol is the most harshly punished child pornography crime under Section 263.30 of the New York Penal Code. This charge relies on a person committing several specific actions:
- they administer alcohol or an illegal or controlled pharmaceutical substance to a child younger than 17 years old
- they commit the act without the child’s consent
- the commit the act specifically intending to commit a felony under Article 153 against the child, and
- they attempt to or commit the conduct against the child
Child pornography is a felony in the state of New York and comes with mandatory sex offender registration. It may also include federal charges.
Offenses Related to Child Pornography Charges
While child pornography charges are serious, there are other charges related to it that can add to your punishment for the crime. Some other charges that are the federal and/or state level include:
- Endangering the Welfare of a Child (NY PL 260.19)
- Child exploitation (18 U.S.C. § 2251)
- Aggravated Sexual Abuse (18 U.S.C. § 2241)
- Sexual abuse (18 U.S.C. § 2242)
- Sexual abuse of a minor or ward (18 U.S.C. § 2243)
- Abusive sexual contact (18 U.S.C. § 2244)
- Mailing obscene or crime inciting matter (18 U.S.C. § 1461)
- Importation or transportation of obscene matters (18 U.S.C. § 1462)
- Transportation of obscene matters for sale or distribution (18 U.S.C. § 1465)
- Engaging in the business of selling or transferring obscene matter (18 U.S.C. § 1466)
- Transfer of obscene material to minors (18 U.S.C. § 1470)
- Sexual abuse (18 U.S.C. § 2242)
- Sexual exploitation of children (18 U.S.C. § 2251)
- Selling and buying of children (18 U.S.C. § 2251A)
- Certain activities involving sexual exploitation of minors (18 U.S.C. § 2252)
- Certain activities relating to material containing child pornography (18 U.S.C. § 2252A)
- Production of sexually explicit depictions of a minor to Import into United States (18 U.S.C. § 2260)
- Penalties for registered sex offenders (18 U.S.C. § 2260A)
Often an individual will be charged under both state and federal laws so when you are charged with these additional offenses related to a child pornography charge it can increase your sentence even more.
Penalties for Federal Child Pornography Offenders
The different charges of and related to child pornography carry very serious penalties. An individual who has a conviction of knowingly possessing child pornography faces as many as 10 years in prison. However, if the minor in the image is younger than 12 years old, that sentence jumps to as many as 20 years in prison.
Producing child pornography carries fines and a minimum of 15 years in prison, up to 30 years – for first-time offenders.
Transporting child pornography in interstate or foreign commerce, first offense, carries a minimum of 5 years with a maximum of 20 years, as well as fines.
Distribution of child pornography carries a prison sentence of 5 to 20 years.
If a person has a prior conviction of child pornography, their sentence can be even greater. If there is an added charge of an aggravated offense or situation which can include images that are masochistic, sadistic, or violent, or if there was any sexual abuse performed on the minor, or if the offender has been convicted previously for child sexual exploitation, the individual could be looking at a maximum penalty of life imprisonment.
In addition to prison time, those convicted of child pornography are often ordered to pay fines and restitution to any victim of the offense who is identifiable.
Registration as a sex offender is another penalty that comes with being found guilty of child pornography charges.
Penalties for Child Pornography Offenders in New York
Sentencing under New York law for child pornography charges, or “sexual performance by a child” often has prison time as well as fines. However, it is sometimes difficult to determine the exact prison time because parole is often available after the person completes two-thirds of their sentence.
Possession of a sexual performance by a child, a Class E felony, carries a sentence of up to four years in prison. There is no statutory minimum sentence here, but probation for a felony conviction is ten years.
Promotion, receipt of, or distribution of a sexual performance by a child, a Class D felony, carries a sentence of up to seven years in prison.
A person found guilty of child pornography in New York will also be required to comply with sex offender registration and notification.
In some cases, a conviction of child pornography can include a civil commitment, meaning you could be involuntarily committed to a long-term secure mental hospital.
While you are on probation or parole, you could also be limited to where you live, how you are allowed to use a computer and other electronic devices, and even who you are allowed to live with. You may also be ordered to get mandatory therapy.
Child Pornography Defenses
If you are facing child pornography charges, your defense is everything. Some common defenses against child pornography include:
- Mistake of Age – The accused individual has a reasonable belief in good faith that the child was older than 16 years of age (or 17, depending on the charge)
- Accidental Possession – The accused individual downloaded a file or files that contain embedded files in the image or folder. Also, files that are mislabeled or have misleading names that do not indicate child pornography.
- Lack of Knowledge or Intent – Lack of knowledge or intent in acquiring child pornography is the strongest defense that an accused person can use. Material that is not labeled or is hidden can find its way into your possession without you ever knowing it was there. That is the best defense you can have against child pornography.
If you are facing child pornography charges in New York or federal child pornography charges, do not compound an already volatile, potentially destructive situation that will indelibly mark you for the rest of your life. Put yourself in the best place to challenge accusations made against you. You need a child pornography defense lawyer on your side to work hard to ensure the best possible outcome for you. Call The Litvak Law Firm at (718) 989-2908. Your initial phone consultation is free. Protect your rights. Get the representation you need. Call today.