Child Pornography Law

The federal government has been increasingly involved in child pornography cases due to the use of the internet and computers used to reach customers across federal and state borders. The U.S Child Pornography Prevention Act of 1996 makes it illegal to possess, distribute, sell, or advertise material that contains sexual activity involving an underage child. Individuals who are tried at the federal level face greater ramifications with punishments that include long prison terms and fines that can reach up to $100,000.

Individuals who are convicted as sex offenders for the possession, distribution, selling, or in any way related to the production of a child pornography will be required to upload their personal information including a face image, their full legal name, their address, their school address (if the sex offender is attending school), their employer name and address, and their vehicle information. The sex offenders will be federally required to register with the U.S Department of Justice: National Sex Offender Public Website (NSOPW) so that their information is shared with the public domain. Sex offenders in child pornography cases are often required to register their information for a lifetime if they are convicted of repeated sex crimes.

The state of California Penal Code 311 defines that child pornography consists of any audio or visual material that illustrates real or artificial simulation of children (a person under the age of 18) engaging in sexual activity. The crime of possession of child pornography is punishable if considered indecent by the court and if the prosecutors are able to prove that the sex offender knowingly committed the acts. Any solicitation of a child for child pornography or for sexual reasons is punishable under the law and may be charged with a federal felony if the sex offender used the internet as a tool to contact children. In addition, using the internets for distribution or selling of child pornography can also constitute a federal judge for violation of the Child Pornography Prevention Act of 1996.

In the state of California, the 'material' in a child pornography case is defined as any portable device that has the capacity to hold visual or audio containing or pertaining to child pornography. The material or objects described in the law that can be used to distribute, reproduce, or sell child pornography are:

• Film of any type
• Photography or photocopies
• Videotapes
• Computer systems
• Computer software or storage devices
• Art depicting child pornography including statues, paintings, and drawings
• Recording devices that hold the sound of child pornography

If individuals are caught with material that contains or that has been used in the production of a child pornography, they may face a lawsuit under Penal Code 311.11 for possession of child pornography. In a court of law, the prosecutor will need to prove that the defendant (in this case the sex offender), was in possession of material that contained child pornography. The prosecutor must also be able to prove that the defendant was aware that the material containing child pornography involved minors under the age of 18.

Under the California Penal Code 311 possession of child pornography with the intent to distribute is an offense that can be charged as a misdemeanor or as a felony depending on the circumstances. In the state of California, it is a felony under Penal Code 311.2 to distribute child pornography to a person that is under the age of 18. Under the same penal section, it is illegal to distribute child pornography with the intent to sell and make any form of profit.

In the state of California an individual can be charged under different penal codes for possession of child pornography. Depending on the situation, an individual can be charged with a misdemeanor or with a felony each providing a different set of penalties and regulations.

Penal Codes 311.1 and 311.2: these penal codes establish laws that make it illegal to transport, sell, distribute, exchange or replicate child pornography. The penalties that apply under this penal code increase if the material is considered indecent, if the material is distributed or sold to a person under the age of 18, or if the material is being used for other commercial purposes.

• Under the state of California Penal Code 311.1, a misdemeanor for possession of child pornography is punished with a jail sentence of up to one year or a fine of up to $1,000. On the other hand, a felony for the possession of child pornography can constitute a fine of up to $10,000 and up to 3 years in state prison.
• Under Penal Code 311.2 distributing child pornography for commercial reasons can be punishable by up to 6 years in prison and charged with a fine up to $100,000. Under Penal Code 311.2 intent to distribute to a minor can constitute a misdemeanor that can be punished with up to a year in prison or with a $1,000 fine. Felonies for intent to distribute to a minor can be punishable by up to 3 years in state prison and/or a fine of up to $10,000.

Penal Codes 311.4: makes it illegal to intentionally hire, recruit, or coerce an underage minor to take part in a child pornography. Individuals can be charged under this penal code even if they are not the producers of the film. Simply recruiting or soliciting a child for a child pornography is enough to be charged under this penal code.

• Under Penal Code 311.4 a first offense can be treated as a misdemeanor that is punishable by up to a year in county jail and/or with a fine of up to $1000. Any second offense under this penal code is treated as a felony and is punishable by up to three years in prison or up to $50,000 in fines.

Penal Code 311.10: makes it illegal to intentionally advertise the sale or distribution of child pornography. Individuals who use the internet to advertise the selling or distribution of child pornography may be charged with additional ramifications from the federal government.

• Under Penal Code 311.10 misdemeanors are punishable by up to one year in county jail and/or a fine of up to $10,000. Felonies under this penal code constitute penalties that include up to 4 years in state prison and/or fines of up to $50,000.

Penal Code 311.11: makes it illegal to simply possess child pornography. First-time penalties are charged with up to a year in prison or a fine of up to $2,500. Repeated offenses can be treated with up to 3 years in state prison and/or a fine of up to $10,000.

Penal Code 311.12: Provides additional ramifications for individuals caught with possession of child pornography material. Individuals charged under this penal code may face up to 6 years in prison if they are convicted for the second time or if the individual is convicted of another sex crime. In addition, defendants (sex offenders) caught with more than 600 images with images of underage children are facing prison time of up to 5 years.

Sex offenders convicted under the Penal Codes that address child pornography will find that after their conviction they will be required to register as a sex offender. In the state of California, individuals who are charged with a sex crime involving child pornography must register as sex offenders for the rest of their lives. The California law will change on January 1, 2021, and it will provide a distinction between the registration requirements for different sex offenders. Individuals will be classified into three different tiers with Tier 3 holding the most severe regulations and code of conducts for sex offenders. Sex offenders classified as Tier 3 will face having to register as sex offenders for the rest of their lives, individuals in Tier 2 will be required to register as sex offenders for 20 years, and individuals classified as Tier 1 sex offenders will be required to register for 10 years.

The California Department of Justice requires that individuals convicted of a sex crime are required to register as sex offenders. The California Sex Offender Registry is a database containing information of all registered sex offender in the state of California. Sex offenders are required to periodically update their information to include an updated image of their face, their full legal name, their home address, their vehicle information, their employer name and address, their school name, and other personal information. The information is not private, the information becomes public so that your neighbors, employers, and other individuals in your community are notified of your presence.

Upon being released from prison or a mental institution, individuals are required to register with the California Sex Offender Registry no later than five days. Depending on the sex offender tier, the sex offender will have to periodically update their information on the register. Sex offenders are required to update their employment and housing status within five days of moving to a new location or starting a job at a different location. Under the California Megan Law, individuals must comply with the registry regulations pertaining to their situation. In addition, Megan’s law provides that individuals can apply to have their information removed from the public website once they meet certain criteria.

Defenses for Individuals in a Child Pornography Case

Individuals who are charged with the possession of child pornography can defend themselves if:

• They did not know of their possession of child pornography material
• They did not know that the material contained images, video, or the sound of individuals under the age of 18
• They have been falsely accused or framed
• They have been entrapped by a police officer through sting operations that aim to pressure or harass an individual to buy child pornography
• They have been had their information obtained through illegal search and seize measures
• They have a mental disorder that makes them addicted to child pornography
• The individuals in the material were not under the age of 18