The Protection of Children from Sexual Predators Act of 1998 (Public Law 105-314) was adopted in October of 1998 and was intended to enhance the existing laws concerning sexual crimes against minors, including child pornography.
The Act focuses primarily on expanding definitions of child pornography-related offenses such as production, distribution and frequently concurrent crimes, as well as increasing both average penalties for those found guilty of related crimes. Maximum penalties were increased for repeat offenders via the adoption of the Protection of Children from Sexual Predators Act of 1998, and increased protections for minors were imposed.
This Act also imposed a zero-tolerance policy concerning simple possession of child pornography, reducing the number of illegal images or instances necessary to face charges from three to one.
Federal law is extremely clear in setting explicit (and harsh) penalties in place for those found guilty of child pornography, or related crimes, in federal court. Given the broadness of the language involved in the Code as it concerns charges related to child pornography, the majority of cases are tried at the federal level, rather than at the state level.
A first-time offender convicted of the production of child pornography might face a minimum sentence of 15 years imprisonment, with a maximum penalty of 30 years. A first-time offender convicted of trafficking child pornography via interstate or foreign commerce faces a minimum of five years prison time, and a maximum of 20 years. Almost all child pornography distribution involving a computer, smartphone or the Internet generally involves interstate or foreign commerce.
Charges can be further elevated or enhanced if aggravating factors are present. Repeat offenders face even steeper sentences if found guilty, and if the crime involved prepubescent children. If you are a convicted offender, you could face even harsher penalties if there are prior convictions or if the offense occurred in aggravated situations such as if the images of the child are violent or if the minor was sexually abused.
It should also be noted that it has been established that your First Amendment rights to not extend to protection from charges related to child pornography.
Teenage sexting is increasingly common in the digital era, and the law is beginning to address this behavior, largely at the state level. While it is possible that complications can arise based on the particulars of a consensual sexting relationship, for example, if one participant is 19 and the other 17, sexting between near-in-age teenagers is usually legal according to state courts and legislatures.
According to the Federal Juvenile Delinquency Act (FJDA), in most cases, juveniles should be prosecuted in state, rather than federal courts. However, this does not protect teens who have reached the age of majority. Despite a growing acceptance of sexting between consensual teenage parties, harsh statutory penalties, perhaps even charges related to child pornography, may still apply.
Several states are modifying or creating new laws to address the sexting trend. In New York, for example, consensual sexting participants who are criminally charged, are both under the age of 20, and are within five years of age do not face serious penalties. Rather, these two individuals are diverted to a mandatory re-education program focused on the dangers of sexting and possible negative outcomes related to the practice.
An experienced criminal defense attorney who is familiar with federal and state child pornography laws can offer professional counsel if you have been accused of child pornography.
One common defense against charges of child pornography convictions (or related offenses) might be ignorance or unknowingly possessing the pornography — for example, being unwittingly sent an email containing child pornography, buried among others. If the evidence was obtained through illegal search and seizure such as through a search of your residence or property without the backing of a warrant, this could also be a successful defense that an attorney may be able to help you with.
In situations in which the subject of an alleged image depicting child pornography was actually the age of majority when the photo or video was taken, the evidence may be an absolute defense. Depiction of adult pornography is not an offense, with few exceptions.
Finally, a lawyer familiar with child pornography cases may argue or advise you to adopt a defense of compliance with law enforcement. Good faith reporting of any child pornography encountered or transferred may qualify, as may your willingness to give material testimony against co-conspirators or traffickers in exchange for a reduced sentence.
Child pornography is a serious crime with serious legal repercussions. If you are involved in a child pornography case, it is imperative that you hire an attorney who specializes in child pornography cases immediately. Your attorney can consider all possible legal defenses will have a solid understanding of federal and state child pornography laws, so you can be sure your rights are protected in a court of law.
Due to the severity of this crime and the related consequences, it is very important for anyone facing child pornography charges to choose an experienced attorney who demonstrates a solid understanding of child pornography laws.