Child Pornography Charges
How Child Pornography Charges are Investigated
Child pornography investigations usually involve a combination of federal agents and local law enforcement officers. Some of the federal agencies involved include the FBI, Homeland Security and ICE. These agencies and officers work together to infiltrate chat rooms where they believe child pornography is being uploaded, traded, possessed or created. Specifically, they look for chat rooms in which users are engaged in peer-to-peer (“P2P”) file-sharing practices.
Undercover officers and agents may pose as underage minors or possessors of child pornography willing to swap photographs or videos. Officers and agents may also receive tips from Microsoft and Apple that their users are in possession of child pornography. With technology ever evolving, law enforcement officers are using every tactic they can to pursue persons committing child pornography offenses across the state and country.
State Child Pornography Charges
In North Carolina, child pornography charges are called “sexual exploitation of a minor.” Mistake of age is not a defense to child pornography under state law. A conviction of any child pornography offense in North Carolina requires registration with the sex offender registry.
First-Degree Sexual Exploitation of a Minor
This occurs when a person, knowing the character or content of the material or performance: (1) uses, employs, induces, coerces, encourages, or facilities a minor to engage in or assist others to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; (2) permits a minor under his or her custody or control to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; (3) transports or finances the transportation of a minor through or across the state with the intent that the minor engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or (4) records, photographs, films, develops, or duplicates for sale or pecuniary gain material containing a visual representation depicting a minor engaged in sexual activity. A person who violates this statute is guilty of a Class C felony. A Class C felony conviction for a non-sex-offense related crime has a maximum possible punishment of 182-228 months in prison. However, a reportable conviction under the sexual offender registration program is subject to a higher statutory maximum sentence than the average criminal conviction. Specifically, the maximum term of imprisonment is 120 percent of the minimum term of imprisonment (rounded to the next highest month) plus sixty additional months. This brings the maximum term of imprisonment from 228 months to 279 months for a conviction of this offense.
Second-Degree Sexual Exploitation of a Minor
This occurs when a person, knowing the material’s character or content, records, photographs, films, develops, or duplicates or distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material containing a visual representation of a minor engaged in sexual activity. A person who violates this statute is guilty of a Class E felony. A Class E felony conviction for a non-sex-offense related crime has a maximum possible punishment of 63-85 months in prison. However, because this is an offense that would require registration on the sex offender registry, the maximum term of imprisonment is 120 percent of the minimum term of imprisonment (rounded to the next highest month) plus sixty additional months. This brings the maximum term of imprisonment from 85 to 138 months for a conviction of this offense.
Third-Degree Sexual Exploitation of a Minor
This occurs when a person, knowing the material’s character or content, possesses material containing a visual representation of a minor engaged in sexual activity. A person who violates this statute is guilty of a Class H felony. A Class H felony conviction for a non-sex-offense related crime has a maximum possible punishment of 25-39 months. However, because this is an offense that would require registration on the sex offender registry, the maximum term of imprisonment is 120 percent the minimum term of imprisonment (rounded to the next highest month) plus sixty additional months. This brings the maximum term of imprisonment from 39 months to 90 months.
Federal Child Pornography Charges
Federal law defines child pornography as any visual depiction of sexually explicit conducting involving a minor. The age of consent for sexual activity in each state is irrelevant; any depiction of a minor under the age of 18 years old engaging in sexually explicit conduct is illegal. Federal child pornography charges carry extensive mandatory minimum prison sentences. For example, a first offender convicted of producing child pornography faces a minimum of 15 years to a maximum of 30 years in prison. If the offender has a prior record with a similar conviction, the penalties increase, and a conviction could carry a life sentence.
Sexual Exploitation of Children (Production of Child Pornography)- 18 U.S.C. § 2251
This offense involves persuading, inducing, enticing or coercing a minor to engage in sexually explicit conduct for the purpose of producing, receiving, transmitting or transporting a visual depiction of a minor engaged in sexually explicit conduct. Violation of this statute carries a minimum term of imprisonment of 15 years. If the offender has a prior conviction relating to similar conduct, the mandatory minimum is 25 years in prison. If the accused has two prior convictions relating to similar conduct, the mandatory minimum is 35 years in prison. If violation of this statute results in the death of a person, the accused shall be punished by 30 years to life in prison or death.
Selling or Buying of Children - 18 U.S.C. § 2251A
This offense involves a parent or other legal guardian selling or transferring a minor to another for the purpose of creating child pornography. Violation of this statute carries a sentence of at least 30 years to life in prison.
Possession, Distribution and Receipt of Child Pornography - 18 U.S.C. § 2252/2252A
These offenses constitute certain activities relating to material (i.e. pornography or otherwise) that involve the sexual exploitation of minors. These offenses involve mailing, shipping, or sending child pornography to another person. Violation of these statutes carries a minimum sentence of five years and a maximum sentence of 20 years for first offenders. Offenders with prior convictions face a minimum sentence of 15 years to a maximum sentence of 40 years.
Production of Sexually Explicit Depictions of a Minor for Importation into the United States - 18 U.S.C. § 2260
This offense can occur when a person outside the United States employs, uses, persuades, induces, entices or coerces a minor to engage in, or transports a minor with the intent that the minor engage in, any sexually explicit conduct for the purpose of producing child pornography, and intending that the child pornography will be imported or transmitted into the United States. Any person who violates the statute in this manner will serve a minimum sentence of 15 years in prison. If the offender has a prior conviction involving similar conduct, the minimum sentence becomes 25 years in prison. If the offender has two or more prior convictions, the mandatory minimum sentence is 35 years in prison. If violation of this statue results in the death of another person, the offender shall be punished by death or imprisoned for not less than 30 years or life in prison. This offense can also occur when a person outside the United States knowingly receives, transports, ships, distributes, sells, or possessions with intent to transport, ship, sell or distribute child pornography intending that the child pornography will be imported into the United States. Violation of the statute in this method carries a minimum sentence of five years. If the offender has a prior conviction for similar conduct, the minimum sentence increased to 15 years in prison.
Dual Prosecution (“Petite Policy”)
If you have been prosecuted under state child pornography laws, you are not necessarily immune from federal prosecution. Double Jeopardy principles do not apply because federal and state governments are entirely different sovereigns. In order for the federal government to prosecute you following a state prosecution based on substantially the same conduct, three prerequisites must be satisfied: (1) the matter must involve a substantial federal interest; (2) the prior prosecution must have left that interest demonstrably unvindicated; and (3) the government must believe a federal crime has been committed and there is sufficient admissible evidence that a jury is likely to convict the accused. Even if those three prerequisites have been satisfied, the government must obtain permission from the Office of the Attorney General. While the process of dual prosecution seems cumbersome, it can be done. You need an experienced federal criminal defense attorney to minimize your risk of being prosecuted in two separate jurisdictions for the same conduct.
Defending Child Pornography Charges
Defending child pornography cases requires both legal experience and technological skill. The attorneys at Tarlton Polk Law are experienced state and federal child pornography attorneys. In addition, we have an in-house computer science expert who can review and analyze the technological evidence against you. If you have inadvertently downloaded child pornography, our team will work to prove it. If you are facing a mandatory minimum sentence, we will work to reduce your exposure to lengthy terms of imprisonment.
Static-99 or Static-99R Risk Assessment
One of the stereotypes associated with a child pornography charge is that the accused is a danger to society. Recent studies, however, show that child pornography consumption does not represent a risk factor for committing future sex crimes. In order to combat this stigma, persons accused of child pornography offenses can submit to a Static-99/Static-99R risk assessment. This evaluation is used to determine whether a person has a high risk of re-offending in the future. This assessment can be used to negotiate outcomes and mitigate sentences for child pornography cases.
Downward Departures and Downward Variances
In federal court, child pornography statutes provide mandatory minimum and maximum sentences for convictions. The federal sentencing guidelines also provide guidance for the court on how to sentence an individual convicted of child pornography charges within those mandatory minimum and maximum sentences. The guidelines, however, are just advisory. A judge can sentence a person below the recommended guideline range in appropriate cases. This is called a downward departure or a downward variance.
The federal sentencing guidelines are notoriously harsh in child pornography cases. The child pornography guideline is grounded in the now-discredited belief that those who consume child pornography are actually child molesters. Under this view, punishing child pornography possessors serves as a proxy for punishing child sexual abusers. However, leading experts now recognize that research is unsupported by actual evidence. The guidelines, in their current form, also allows a court to increase a sentence if the offender obtained child pornography through use of a computer. However, given the widespread use of the internet in today’s society, what was once deemed an aggravating factor in obtaining child pornography (use of a computer) is now inherent in most child pornography offenses. Thus, the “use of computer” enhancement is no longer an appropriate factor to calculate an offender’s degree of culpability. Given the outdated nature of the child pornography guideline, it is important to hire a lawyer who can effectively argue that certain enhancements and aggravating factors should not apply. The attorneys at Tarlton | Polk are well-versed in the sentencing guidelines and have obtained downward departures and downward variance in child pornography cases.