Federal Law on Child Pornography

Federal Law on Child Pornography

Child pornography is a form of child sexual exploitation.  Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor. 

Images of child pornography are also referred to as child sexual abuse images.  There are several federal laws regarding child pornography offenses. 

They are found under Title 18 of the United States Code, which is the main criminal code of the federal government.  Title 18 deals with both federal crimes and criminal procedure.   

Congress first passed legislation against child pornography with the Protection of Children Against Sexual Exploitation Act of 1977.  In the years that followed, Congress continued to pass tougher legislation, particularly in the wake of the Internet, when child pornography would begin to flourish online. 

Consequently, Congress passed legislation to address the technological developments expanding the availability of child pornography. 

In 1988, the first statute passed to address these issues criminalized transporting, distributing or receiving child pornography via computer.  By 1990, the U.S. Supreme Court upheld a state law that prohibited the private possession and viewing of child pornography in one’s own home. 

Later that year, Congress passed a law which also criminalized the knowing possession of child pornography. 

The current sentencing scheme in child pornography cases generally divides offenders into two groups for the purposes of sentencing.

• (1) those who produced child pornography or engaged in acts directly related to its production, such as advertising for minors to appear in child pornography; and
• (2) those who possessed, distributed, or engaged in other acts related to the collection of child pornography but who did not produce it. 

Typically, defendants charged with production related offenses are charged more severely than those who commit non-production offenses.   

First amendment considerations

Under the First Amendment of the U.S. Constitution, it provides that “Congress shall make no law […] abridging the freedom of speech, or of the press.”  While the First Amendment does generally protect pornography, the U.S. Supreme Court has held that it does not protect two types of pornography – obscenity and child pornography.  

The Supreme Court has defined “obscenity,” as something that:

• (1) is prurient in nature;
• (2) is completely devoid of scientific, educational or social value; and
• (3) violates the local community standards. 

However, child pornography, even when it may not meet the legal standard of obscenity, is still unprotected under the First Amendment.   

In 1996, Congress passed the Child Pornography Prevention Act (CPPA).  The CPPA was introduced in response to computer technology that allowed the creation of electronic images that appeared to be photographs of real people but were in fact artificial or contained artificial elements. 

The CPPA subsequently expanded the existing definition of child pornography to prohibit “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be a minor engaging in sexually explicit conduct.” 

It also prohibited “any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.”

However, in Ashcroft v. Free Speech Coalition (2002), the U.S. Supreme Court would ultimately strike down the expanded definition of child pornography under the CPPA as overly broad because it banned a “significant universe of speech that is neither obscene […] nor child pornography…”. 

By expanding the definition of child pornography to include any image that “appears to be” of a minor engaged in sexually explicit conduct or that is “presented…in such a manner that conveys the impression” that it is a minor engaging in sexually explicit conduct, the CPPA would criminalize images that are not obscene, nor produced with any actual children. 

The Court provided examples of the kind of material that could be prohibited under the CPPA under that definition, which included a picture in a psychological manual, and well-known, award-winning theatrical films that portray minors having sex, such as Romeo and Juliet, American Beauty, and Traffic.

When federal jurisdiction is implicated

Offenses related to child pornography are punishable under both state and federal laws.  However, federal jurisdiction is implicated in a child pornography offense if it occurred in interstate or foreign commerce.  Interstate commerce means the buying, selling, or moving of products, services or money across state borders.  Foreign commerce means commerce or travel between any part of the United States and any place outside our borders.

Therefore, use of the U.S. Postal Service or common carriers transporting child pornography across state or international borders would implicate federal jurisdiction.  Common carriers are any individual or business that advertises to the public that it is available to transport people or property in exchange for a fee.  Examples include airlines, railroads, bus lines, taxicab companies, cruise ship, trucking companies or other freight companies.  Common carriers also include phone companies and telecommunications services.  

As such, federal jurisdiction almost always applies when the Internet is used to commit a child pornography violation.

Even if the child pornography image itself did not travel across state or international borders, federal law may be applicable if the materials, such as the computer used to download the image or the CD-ROM or USB drive used to store the image, originated or previously traveled in interstate or foreign commerce.As with many federal crimes, jurisdictional issues are important to consider. 

A number of the offenses enumerated below require that interstate or foreign commerce have been used or affected during the commission of the crime. 

Therefore, intrastate conduct, meaning existing or occurring within the boundaries of only one state, may not trigger the federal government’s law enforcement powers, leaving the conduct to be investigated and prosecuted by a state government agency.

18 U.S.C. § 2552 – Certain activities relating to material involving exploitation of minors

Section 2252 of Title 18 sets forth four offenses that deal with the distribution, exchange and possession of child pornography.  

Transportation of child pornography

Legal elements

Subsection (a)(1) of Section 2252 prohibits anyone from knowingly transporting or shipping in interstate commerce any visual depictions involving a minor engaging in sexually explicit conduct.  

More specifically, in order for a defendant to be convicted, the government must prove, beyond a reasonable doubt, the following legal elements:

• (1) the defendant knowingly transported a visual depiction in interstate commerce by any means, including a computer;
• (2) that the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
• (3) that such visual depiction was of a minor engaged in sexually explicit conduct;
• (4) that the defendant knew that such visual depiction was of sexually explicit conduct; and
• (5) that the defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor. 

Legal definitions

Some of the terms used in the language of this statute carry specific definitions under the law. 

Transport:

To transfer or attempt to transfer possession of something to someone else by any means, including mail, computer, or in person.  Under the first element of § 2252(a)(1), the government must prove that at least one image of child pornography was transported in interstate commerce using any means. 

Ultimately, transportation of child pornography applies to both the physical and virtual realm – sending child pornography via email or text would be just as illegal as doing so through one’s local post office.

Computer:

Any electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.  Simply put, the term “computer” includes cellphones and tablets, amongst the devices that fall under this definition.

Knowingly:

This means that the defendant had an awareness of the sexually explicit nature of the material and that the visual depictions were in fact of minors engaged in that sexually explicit conduct. 

The government does not have to show that the defendant had specific knowledge as to the actual age of the person(s) in the image.  Rather, the defendant must have knowledge or an awareness that the material contained a visual depiction of a minor engaging in sexually explicit conduct.  Such knowledge may be shown by direct or circumstantial evidence, or both.

Visual depiction:

Any photograph, film, video, or picture where the producing of the visual depiction involves the use of a minor engaging in sexually explicit conduct. 

It also includes undeveloped film and videotape; data stored on a computer disk or other storage device by electronic means which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.  

Minor:

Here, a minor means any person under the age of eighteen years; therefore, the age of consent for sexual activity in a particular state is irrelevant under this statute.  Sexually Explicit Conduct: Sexually explicit conduct means any one of the following five categories of conduct, whether the conduct is actual or simulated:

• (1) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
• (2) bestiality;
• (3) masturbation;
• (4) sadistic or masochistic abuse; or
• (5) lascivious exhibition of the genitals or pubic area of any person.

Whether an image of the genitals or pubic area constitutes “lascivious exhibition” requires evaluation of the overall content of the material.  A jury may consider the following factors when making this determination: 

• (1) whether the genital or pubic area are the focal point of the image;
• (2) whether the setting of the image is sexually suggestive, for example a location typically associated with sexual activity;
• (3) whether the child is depicted in an unnatural pose or inappropriate attire, considering the age of the child;
• (4) whether the child is fully or partially clothes, or nude;
• (5) whether the image suggests sexual coyness or a willingness to engage in sexual activity;
• (6) whether the image appears intended or designed to elicit a sexual response in the viewer.

An image does not need to involve all six factors in order to qualify as a “lascivious exhibition.”  Moreover, this list of factors is not comprehensive, and jurors will typically be permitted to consider any other factors specific to the case that they find relevant. 

In sum, the definition of sexually explicit conduct does not require that an image depict a child engaging in actual sexual activity – a picture of just a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive.  

Receipt, distribution, or reproduction of child pornography

Legal elements

Subsection (a)(2) of § 2252 prohibits anyone from receiving or distributing any child pornography that has been mailed or moved in interstate or foreign commerce, or from reproducing such images for distribution.  For the government to sustain a conviction it must prove the following legal elements:

• (1) the defendant knowingly received or distributed, or reproduced for distribution, a visual depiction in interstate or foreign commerce by any means, including a computer;
• (2) that the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
• (3) that such visual depiction was of a minor engaged in sexually explicit conduct;
• (4) that the defendant knew that such visual depiction was of sexually explicit conduct; and
• (5) the defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.

Legal definitions

Many of the same definitions will apply here as they do under § 2252(a)(1), regarding the Transportation of Child Pornography.  Any unique terms are defined below:

Distribute:

Delivering or transferring possession of something to someone else, regardless of whether it is for monetary gain.  One of the most common methods of child pornography distribution is the sharing of files through peer-to-peer network sharing software.

Receive:

This simply means knowingly accepting or taking possession of something.  This includes downloading an image of child pornography from a website or opening an image shared by another Internet user through a file sharing service. 

Selling of child pornography

Legal elements

Subsection (a)(3) of § 2552 has two parts.  This first part prohibits anyone in the special maritime and territorial jurisdiction of the United States, or on any government land, or in any government facility, from selling or possessing with the intent to sell any visual depiction of a minor engaged in sexually explicit conduct that has been shipped in interstate or foreign commerce or was made with materials sent in interstate or foreign commerce. 

The second part of § 2252(a)(3) penalizes the knowing sale or possession with the intent to sell of any visual depiction of a minor engaged in sexually explicit conduct shipped in interstate or foreign commerce or produced using materials mailed or shipped by any means, including by computer where the production involved the use of a minor engaged in sexually explicit conduct and the visual depiction is of such conduct.

In simpler terms, this subsection makes it illegal for anyone to sell, or possess with the intention of selling, materials that depict a child engaging in sexually explicit conduct if the materials have been shipped or transported over state lines or from another country.  This also applies to persons on land or in a building owned by the U.S. government or in a U.S. territory.

Potential punishment if convicted under 18 U.S.C. § 2552(a)(1)-(3)

Any convictions for transporting, receiving, distributing, or selling child pornography, under subsections § 2252(a)(1), § 2252(a)(2), or § 2252(a)(3) of Title 18 are a felony and carry the same potential punishments. 

Specifically, a defendant convicted under any of these subsections shall face:

• A term in federal prison for no less than 5 years, and a maximum of 20 years
• Fines up to $250,000

However, if a defendant has a prior conviction for certain related offenses, they will face fines and a maximum prison term of up to 40 years.  Moreover, any defendant convicted of merely attempting or conspiring to violate this statute will face the same penalties.

Possession of child pornography

Subsection (a)(4) of § 2552 prohibits any person from knowingly possessing one or more books, magazines, periodicals, films, video tapes, or other matter containing any visual depiction of a minor engaging in sexually explicit conduct, which was shipped or transported or made with materials shipped or transported in interstate or foreign commerce, including by computer. 

Specifically, the legal elements the government must prove beyond a reasonable doubt include:

• (1) the defendant knowingly possessed any materials, computer, computer storage medium, or matter that the defendant knew contained a visual depiction of a minor engaged in sexually explicit conduct;
• (2) the defendant knew the visual depiction contained in the materials, computer, computer storage medium, or matter was of or showed a minor engaged in sexually explicit conduct;
• (3) that the defendant knew that the production of such visual depiction involved the use of a minor engaged in sexually explicit conduct; and
• (4) that the visual depiction had been either: (a) mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or (b) produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer.

Legal definitions

Many of the same definitions will apply here as they do under subsections 2252(a)(1) – (3).  Any unique terms are defined below:

Knowingly:

In this context, knowingly simply means that the act was done voluntarily and intentionally and not because of mistake or accident.  Jurors can ascertain this by considering evidence of the defendant’s words, acts, or omissions, along with all the other evidence presented to them.

Possession:

This is defined as exercising authority, dominion, or control over something.  The law recognizes different kinds of possession, and this definition does not necessarily mean the same thing as legal ownership.  Possession includes both “actual” and “constructive” possession. 

A person who has direct physical control of something on or around his person is considered in “actual” possession of it.  Even if one does not have actual possession but has both the power and the intention to exercise control over something is then in “constructive” possession of it.  As such, “possession” here applies to both “actual” or “constructive” possession. 

“Possession” also includes “sole possession” and “joint possession.”  Specifically, if one person alone has actual or constructive possession, such possession is “sole.” 

If two or more individuals share actual or constructive possession, possession is then “joint.”  “Possession” as applied under this statute also means both sole and joint possession as well.

Affirmative defense

Sometimes a criminal defendant may be entitled to acquittal – even if the government has proven every element of the charged offense. 

This happens when the defendant has successfully raised what is known as an “affirmative defense.”  Common affirmative defenses include a plea of insanity, mistake of fact, self-defense, and the running of the statute of limitations (the time period, starting from when the crime occurred, during which a prosecution must commence).  

18 U.S.C. § 2552 provides an affirmative defense to Possession of Child Pornography.  The defense is available if the defendant did the following:

• (1) possessed less than three matters containing any visual depiction of a minor engaging in sexually explicit conduct; and
• (2) promptly and in good faith, took reasonable steps to destroy the images or reported the matter to a law enforcement agency.   

The defendant may not allow anyone else, other than law enforcement, to access the images.  This defense is not typically available to defendants in a federal child pornography case, but it may provide relief in those instances where the defendant inadvertently downloaded only one or two contraband images.

Potential punishment if convicted

A conviction for violating 18 U.S.C. § 2552(a)(4), Possession of Child Pornography, is a felony and the defendant shall be sentenced to fines and a term in federal prison of no more than 10 years. 

However, if the material depicts a minor under the age of twelve, the defendant faces fines and maximum sentence of 20 years imprisonment.  If the defendant has a prior conviction for certain related offenses, the minimum penalty is 10 years in prison and the 20-year maximum applies regardless of the age of the minor depicted in the images.

Receipt vs. possession of child pornography

Receipt of child pornography and possession of child pornography are both criminalized under Title 18 of § 2552.  However, the penalties associated with each of these offenses creates a bit of a paradox. 

As noted above, simple possession of child pornography does not carry a mandatory minimum sentence for first-time offenders.  By contrast, receipt of child pornography does impose a mandatory minimum sentence of 5 years. 

Like all other types of contraband, it is by definition impossible to receive child pornography without possessing it, at least at the moment receipt occurs. 

Similarly, it is impossible to possess child pornography without receiving it, except in those instances where the defendant produced the child pornography they are in possession of.  As such, there appears to be no meaningful distinction between these two offenses; yet the punishment for receipt is more severe than possession.

This paradox presents serious ramifications for sentencing in many federal child pornography cases and provides prosecutors with greater discretion in what to charge a defendant. 

Child pornography cases often involve computers, where offenders eventually store these illicit images.  Prosecutors then have discretion as to whether to charge the defendant with “receipt,” “possession,” or both. 

This discretion gives prosecutors the power to determine the defendant’s ultimate sentencing fate due to the fact that § 2252 punishes receipt more severely that possession. 

Moreover, by charging a defendant with both receipt and possession, it gives prosecutors leverage. 

Some prosecutors will agree to drop the receipt charge and forego the mandatory minimum if the defendant agree to plead guilty to possessing child pornography (thereby ensuring a win for the government).

18 U.S.C. § 2251 – Production of child porn (Sexual Exploitation of a Child)

Section 2251 of Title 18 sets forth four offenses that deal with the sexual exploitation of children, which includes employing or using children in order to produce sexually explicit materials.

Production of child pornography and transporting a minor

Legal elements

Subsection 2251(a) of Title 18 has two parts.  The first part makes it illegal to produce and distribute materials showing minors engaged in sexually explicit conduct. 

To sustain a conviction, the government must prove the following elements beyond a reasonable doubt:

• (1) that the defendant employed, used, persuaded, induced, enticed, or coerced a minor to engage in or assist another to engage in sexually explicit conduct;
• (2) the defendant did so for the purpose of producing a visual depiction of that conduct; and
• (3) the visual depiction was produced, transmitted, or transported using any means affecting interstate or foreign commerce, or the defendant knew or had reason to know it would be.

The second part of this subsection criminalizes transporting a minor with the intent that the minor engage in making child pornography.  The following elements must be shown beyond a reasonable doubt:

• (1) that the defendant transported a minor in or affecting interstate or foreign commerce;
• (2) that the defendant acted with the intent that the minor engage in sexually explicit conduct for the purposes of producing a visual depiction of that conduct; and
• (3) the visual depiction was produced, transmitted, or transported using any means affecting interstate or foreign commerce, or the defendant knew or had reason to know it would be. 

Legal definitions

Many of the same definitions will apply here as they do under 18 U.S.C. § 2252.  Any unique terms are defined below: 

Used:

A defendant “uses” a minor if they photograph the minor engaging in sexually explicit conduct.

For the purpose of:

This means that the defendant acted with the intent to create visual depictions of sexually explicit conduct, and that the defendant knew the character and content of the visual depictions.

Producing:

Here, “producing” means producing, making, creating, directing, manufacturing, issuing, publishing, or advertising.

Parents or legal guardians of exploited minor

Legal elements

Subsection 2251(b) makes it illegal for anyone who has custody of a minor to allow them to engage in sexually explicit conduct for the purpose of producing child pornography.  Here, the government must prove the following:

• (1) that the defendant was the parent, legal guardian, or person with custody or control of a minor;
• (2) that the defendant permitted the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct;
• (3) that the defendant knowingly permitted the minor to engage in such conduct; and
• (4) the visual depiction was produced, transmitted, or transported using any means affecting interstate or foreign commerce, or the defendant knew or had reason to know it would be.

It is not necessary for the government to prove that the defendant was the one who created the visual depiction (i.e., took the photographs or made the video) in order to sustain a conviction – it must simply show the defendant knowingly allowed this to happen, regardless of who documented it.  

Legal definitions

Custody or control:

This means to include anyone who had temporary supervision over or responsibility for a minor, whether legally or illegally obtained.  

Sexual exploitation outside the U.S.

Subsection 2251(c) prohibits anyone from employing, using, persuading, inducing, enticing, or coercing a minor to engage in, or anyone who has a minor assist any other person, any sexually explicit conduct outside of the United States or territories, for the purpose of producing a visual depiction of this conduct. 

The primary difference here compared to the other subsections under § 2251 is the requirement that the production of child pornography has to occur outside of the U.S. or its territories, but that the defendant still intends for the material to ultimately be transported to the U.S. or its territories. 

Advertising seeking or offering child pornography

Finally, subsection 2251(d) criminalizes advertising relating to child pornography.  A defendant may be convicted if prosecutors can prove that they made, printed, or published any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce child pornography. 

The statute also prohibits anyone from making an advertisement that seeks or offers participation in sexually explicit conduct with a minor for the purpose of producing child pornography.  In each instance, the defendant had to have known or had reason to know that the advertisement is or would be transported using any means of interstate or foreign commerce, including by computer or mail.

Collateral consequences

Restitution

Defendants who are convicted of possession, receipt or distribution of child pornography can be ordered to pay restitution to any victim(s) identified in the images in question.  In fact, under 18 U.S.C. § 2259, courts are required to impose a minimum restitution amount of $3,000 to each victim. 

To determine the total amount owed by a defendant, the court shall first determine the full amount of the victim’s losses that were incurred or are reasonably expected to be incurred by the victim as a result of the trafficking in child pornography that depicts the victim.  

A victim’s losses include any costs incurred relating to medical services, psychological care, lost income, and any other losses suffered as a proximate cause of the offense. 

After calculating the full amount of a victim’s losses, the court shall order restitution in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses (but in no amount less than $3,000).  

Registration as sex offender

Title 1 of the Adam Walsh Child Protection and Safety Act of 2006 established a comprehensive, national sex offender registration system called the Sex Offender Registration and Notification Act (SORNA). 

Convictions for offenses against a minor, including child pornography, require registration. 

The purpose of SORNA is to monitor and track sex offenders following their release into the community.  Having to register as a sex offender can come with a long list of rules and restrictions, which may include having to report to supervision officers, living certain distances away from schools and other child safety zones, refraining from communicating with minors or former victims, and refraining from possession of pornography or certain sexual materials. 

Failing to register or update one’s registration as required under SORNA is a federal crime and carries penalties that include fines and up to years in prison. 

Criminal forfeiture

18 U.S.C. § 2253 provides for criminal forfeiture in child pornography cases.  Criminal forfeiture is an action brought as part of criminal prosecution of a defendant and involves the taking of a person’s property by the government.  Specifically, § 2253 provides that anyone convicted of violating federal child pornography laws shall forfeit to the United States:

• (1) the child pornography involved in the violation;
• (2) any property constituting or traceable to gross profits or other proceeds obtained from the offense; and
• (3) any property used or intended to be used to commit or promote the commission of the offense.  This includes both real and personal property.

Contact federal criminal defense attorney John L. Calcagni, III

If you have questions or need further assistance with Child Pornography Federal Laws call the Federal Criminal Defense Law Office of John L. Calcagni, III today to schedule a free consultation at (401) 351-5100.