Child Pornography State and Federal Laws
Child pornography is prohibited under both state and federal law, and whether a person is charged under state or federal law is to a certain extent discretionary. Child pornography lawyers know that certain conditions must be met for the federal government to have jurisdiction.
The federal government gets jurisdiction over child pornography cases when any of the following is true: 1) the child pornography traveled across state or country lines (through the U.S. Mail); 2) if the internet is used to receive or distribute the child pornography (such as using a peer-to-peer program); or 3) if the materials, such as the computer used to download the image or an external hard drive used to store the image, traveled in interstate or foreign commerce. People are surprised to learn that even if the child pornography image itself did not travel across state lines, the federal government has jurisdiction if any part of the computer (or phone) that was used to send or receive child pornography was made or traveled outside of the state of Missouri.
Child Pornography-Related Crimes
Child pornography law is codified under both state and federal statutes. Whether you’re charged under state or federal law is dependent on the facts of your particular case. The federal government gains jurisdiction over child pornography-related crimes only in certain circumstances described above. The discussion here focuses on the federal definition of child pornography crimes and also the punishment ranges for charges under federal statute.
It is not uncommon for someone to be charged with other child pornography-related crimes in addition to possession of child pornography.
Possession of Child Pornography
Defined under federal statute 18 U.S.C. § 2256, federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor.
Visual depiction: Any image such as a photo, a drawing, or a video. Most people are surprised to learn that pornography depicting drawings of cartoon or anime children engaged in sexually explicit conduct is considered child pornography and is punishable the same as if actual children were depicted.
Sexually explicit conduct: Sexually explicit conduct does not require that an image depict a child engaging in sexual activity. We have dealt with cases where photos and videos of partially naked minors constituted child pornography because the images were sexually suggestive.
A minor: Under federal law, a minor is a person under 18. The age of consent for sexual activity is irrelevant. So even though a 17-year-old and a 20-year-old in Missouri can legally engage in sexual intercourse, it is a federal crime for the 20-year-old to possess a sexually explicit photo of that 17-year-old.
The punishment range for possession of child pornography is up to 10 years if you have no prior related offense and 10-20 years if you have prior related offenses. Although probation is permitted under the law for offenders with no prior sex offense, judges in the Western District of Missouri (which is the district in which Springfield, Missouri sits) very rarely give probation for possession of child pornography. This is why it is so important that if you have a medical condition or other extenuating circumstance that warrants a request for probation, you need to hire an attorney who will gather evidence of your extenuating circumstance and present that evidence to the court at sentencing.
Receipt and/or Distribution of Child Pornography
The receipt and/or distribution of child pornography is illegal under (18 U.S.C. § 2252 (a)(2)). Individuals using peer-to-peer networks to share child pornography images are frequently charged under this statute. The punishment range under this statute is 5-20 years imprisonment for those who have no related prior offense, and 15-40 years imprisonment for those with prior related offenses. Because of the mandatory minimum term of imprisonment in all cases, those convicted under this statute are not eligible to be sentenced to probation.
Coercion and Enticement of a Minor to Produce Child Pornography
Coercing or enticing a minor child to produce child pornography is a separate chargeable offense from possessing and distributing child pornography. Defined in (18 U.S.C. § 2422(b)), a person may be charged with this crime when he or she persuades, induces, entices, or coerces a minor to engage in prostitution or to produce child pornography. For example, asking a minor to take a photo of the minor engaged in sexually explicit conduct and to text it to you constitutes enticement.
The punishment range for coercing and enticing a minor child to produce child pornography is 10 years to life imprisonment. Those convicted under this statute are not eligible to be sentenced to probation.
Sexual Exploitation by Producing Child Pornography
Sexual exploitation of a minor is another child pornography-related crime that makes illegal the production of child pornography (See (18 U.S.C. § 2251)). This statute covers the actual filming of a minor engaged in sexually explicit conduct and the persuading, inducing, enticing or coercing a minor to film themselves engaging in sexually explicit conduct.
This crime (persuading a minor to make the child pornography) overlaps with coercion and enticement of a minor, but the penalties are different. Generally, the specific facts of the case determine if the prosecutor charges coercion/enticement or instead charges sexual exploitation.
The punishment range for sexual exploitation varies depending on prior related criminal history. If you have no prior related offenses, the punishment range is 15-30 years imprisonment; if you have a prior related offense, the term of imprisonment is increased to 25-30 years; and if you have multiple prior related offenses, the term of imprisonment is increased to 35 years to life.
Transfer of Obscene Material to Minor
The transfer of obscene material to a minor is made illegal under (18 U.S.C. § 1470). This statute does not explicitly define obscene, though charges arising under this statute usually arise from the transfer of material that very obviously contains sexually explicit content. The United States Department of Justice maintains a Citizen’s Guide to U.S. Federal Law on Obscenity which further describes the current state of obscenity under federal law.