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Child Pornography Defense Lawyers in Sarasota, Florida

Florida Statute § 827.071(2)-(5)(a) - Florida Child Pornography Laws, Penalties, and Legal Defenses

Florida Statutes 827.071(2)-(5)(a) defines child pornography and sex crimes involving minors in the state of Florida. Also covered in these statutes are the penalties (if found guilty) for creation, possession, and dissemination of child pornography. In Florida, the crime of child pornography is addressed in Florida Statute 827.071, which deals with sexual performances by a child.

Florida Statute 827.071(2)-(5)(a) and Criminal Offenses

Florida Statute 827.071 describes a variety of actions and activities that fit under the overarching umbrella of “sexual performance by a child”. These include:

Florida Statute 827.071(2): Using a child in a sexual performance by employing, authorizing, or enticing a child under 18 years of age to engage in a sexual performance. It is also unlawful for the parent or guardian of a child under 18 years of age to consent to the child participating in such a performance.

Florida Statute 827.071(3): Promoting a sexual performance by a child is producing, directing, or promoting any performance involving a child under the age of 18 years that also involves sexual conduct.

Florida Statute 827.071(4): Unlawfully possessing any photograph, video, or other representation of a child engaged in sexual conduct with the intention to promote such recording or representation is a criminal offense.

Florida Statute 827.071(5)(a): Possessing or viewing any depiction in whatever form of a child engaged in sexual conduct is a criminal offense. A person possessing multiple depictions can be charged with a separate offense for each separate depiction. For example, a person who has a photograph of a child engaged in sexual conduct as well as a video recording and a data file on his or her computer can be charged with three separate counts of possessing child pornography.

Florida Statute 827.071(1) and Important Child Pornography Definitions

When discussing child pornography offenses in Florida, the following definitions apply:

“Promote” encompasses manufacturing, selling, giving, transferring, publishing, distributing or any other such activity, or agree to do any of these things.

“Performance” includes any play, production, movie, dance, or any other visual depiction that is displayed in front of an audience.

“Sexual conduct” includes a wide variety of sexual acts such as vaginal-penile sexual intercourse, anal intercourse, oral copulation, bestiality, masturbation, and display of the genitals or female breast, among many other sexual activities. The definition of “sexual conduct” explicitly exempts breastfeeding mothers.

Florida Statute 827.071(4) and a Presumption to Promote Child Pornography

Under Florida Statute 827.071(4), there is a presumption against a person who possesses three or more copies of a certain representation of a particular child engaged in sexual conduct. Such a person is presumed to possess those representations for the purposes of promoting them in any prosecution brought pursuant to Florida Statute 827.071(4). A presumption means that a judge or jury hearing the case can consider the evidence as sufficient to meet the statutory element, but the judge or jury need not do so. For instance, at a trial of a person accused of promoting a certain picture of a child engaged in a sexual act, the fact that the person may have had three copies of the same picture can be considered by the judge or jury as sufficient evidence on its own that the person intended to promote the picture.

Penalties Under Florida Statute for Violating Statute Prohibiting Sexual Performance By a Child

The precise penalty for violating this statute depends on the specific subsection the person is alleged to have violated:

Florida Statute 827.071(2) is a second-degree felony, which is punishable by up to 15

years’ imprisonment in a state prison and up to $10,000 in fines.

Florida Statute 827.071(3) is a second-degree felony, punishable by a maximum of 15 years’ imprisonment in a state prison and up to $10,000 in fines.

Florida Statute 827.071(4) is a second-degree felony, punishable by a maximum of 15 years’ imprisonment in a state prison and up to $10,000 in fines.

Florida Statute 827.071(5)(a) is a third-class felony, punishable by a maximum of 5 years’ imprisonment in a state prison and up to $5,000 in fines.

A sentencing court has a great deal of latitude in sentencing a defendant convicted under any one of these sections. The court can impose a prison sentence on the defendant, assign the defendant to probation or supervision, and order the defendant to complete one or more treatment programs. The defendant may also be required to register as a sex offender. A defendant who is ordered to register must do so periodically throughout each year he or she is required to register and must also register when he or she moves to a new residence, changes jobs, or experiences any of a number of changes in his or her personal situation.

Florida Statute 827.071(6): Prosecution for Sexual Performance of a Child Not Exclusive Crime

Subsection (6) of Florida Statute 827.071 serves as a stern reminder that the offenses listed in the statute are not the only crimes with which a person can be charged in a child pornography-related case. A defendant may be charged with other offenses, some of which may have penalties that exceed those set forth in Florida Statute 827.071. For instance, a person who videotapes himself having sexual intercourse with a child under 14 years of age and who is found in possession of that tape can be prosecuted under Florida Statute Chapter 794 (sexual battery) as well as under Florida Statute 827.071(5). The fact that sexual battery carries with it a potential penalty that is far greater than the potential penalty found in Florida Statute 827.071(5) is immaterial. What is more, if this hypothetical person was convicted of both sexual battery and possession of a depiction of a child engaged in a sexual act, the sentences for each offense could be ordered to run consecutive to one another (that is, back-to-back to one another).

Defenses Available to Violations of Florida Statute 827.071

As is true with other sexual-related crimes, there are few viable legal defenses available to those accused of violating Florida Statute 827.071. One popular defense that has very little chance of succeeding is the defense of ignorance as to the child’s actual age. Florida Statute 794.021 states that an erroneous belief as to the child’s actual age – even if it could be considered an “innocent belief” or if the person accused had no reason to question the child’s age – is no defense to charges under that Chapter. While Florida Statute 794.021 does not specifically apply to Florida Statute 827.071, one could expect that such a defense would likely not succeed.

There are, however, other defenses available to those charged with violations of Florida Statute 827.071, including:

The “child” was not, in fact, a child under the age of 18 years. While mistake of age may not be a defense, the prosecution must still prove that the person in the video, audio, picture, or other representation is a child who was under the age of 18 years at the time.

The depiction was not of “sexual conduct”. While the term “sexual conduct” is broad, it does not include all depictions of children engaged in any sort of activity. As unsettling as some may find it, depictions of children at play on a playground or of a very young child in the bath may not, under all the circumstances, meet the definition of “sexual conduct.”

The character of the sexual performance was not known to the person. Under Florida Statute 827.071(2), a person commits the criminal offense of using a child in a sexual performance only if the person entices, employs, or induces a child under the age of 18 years to engage such a performance and the person knows or has reason to know of the character of the sexual performance. If the person who entices or employs a child to engage in a performance had no reason to know in advance that the performance would in fact be sexual in nature, he or she may have a defense to this charge.
The person did not possess representations of children engaged in sexual conduct with the intent to promote such representations. While possession of three or more copies of a representation triggers a presumption that such copies are possessed with the intent to promote them to others, this presumption can be overcome. A judge or jury is not obligated to adopt the presumption if it believes that the evidence does not suggest there was any intent to promote or otherwise distribute the representation.
The person did not “possess” the representations. Possession of any object (be it drugs, a gun, or child pornography) implies a knowledge of the object’s existence and the ability to control, manipulate, or access the object. Absent these two elements – knowledge and ability to control – a judge or jury may find it difficult to find that someone was legally in “possession” of child pornography.

These defenses, either presented alone or in combination with one another, may cause a judge or jury to conclude that there is, in fact, reasonable doubt as to whether a person charged under Florida Statute 827.071 did in fact commit any criminal act related to child pornography. It is the prosecution’s obligation to prove each and every element of every crime with which a person is charged is true beyond a reasonable doubt before a judge or jury can find that person guilty of that offense.

Sarasota Child Pornography Crimes FAQs

Where do I find “child pornography” offenses described in the Florida Statutes?

The words “child pornography” do not appear in the Florida Statutes. Instead, Florida Statute 827.071 describes depictions and representations of children engaged in sexual performances and sexual conduct. This is the language Florida’s Legislature has chosen to describe child pornography: depictions or representations of children under the age of 18 years engaged in sexual conduct or sexual performances.

I didn’t know the child was under the age of 18 when I took his or her photograph or recorded him or her. Do I have a defense to a child pornography charge?

Perhaps, but more information would be necessary before a definitive answer could be given. Ignorance or mistake as to a child’s age is not a defense to crimes listed in Chapter 794 of the Florida Statutes (sexual battery crimes). Because there is no specific mention whether ignorance or mistake is or is not a defense in crimes under Chapter 827, in some cases such evidence may be admissible if it negates a mental state or knowledge. Given Florida’s strict stance toward sexual-related crimes targeting children, though, being able to present such a defense may be challenging.

Are there mandatory minimum prison terms for child pornography charges?

Florida Statute 827.071 does not have a “mandatory minimum” prison term that must be imposed for violations. Nonetheless, the penalties for any child pornography violation are very serious and can easily result in a person being sentenced to prison – even if the person has not been previously convicted of any offense. Absent a plea agreement with the prosecution, imprisonment is a very real possibility.

What is entrapment and can the police set someone up to commit a child pornography-related crime?

Entrapment may be a defense to a variety of crimes, not just child pornography crimes. Entrapment occurs when law enforcement entices and applies undue pressure in order to get someone to commit a criminal act. An exaggerated example would be police who repeatedly contact a person attempting to purchase child pornography from that person and threaten to release embarrassing information if he or she does not comply. In order for a defense of entrapment to be successful, law enforcement’s conduct must be extreme and outrageous and the person targeted must not have had any previous inclination to commit the criminal act.

How does law enforcement choose who to target for a child pornography investigation?

There are various ways whereby someone can come to the attention of law enforcement for suspicion of possession or promotion of child pornography. Tips and reports from witnesses, victims, or others who are involved with the person in making or sharing child pornography can launch an investigation. Electronic tools are also available that can help law enforcement “highlight” conversations, electronic exchanges, and other communications that may be discussing or transmitting child pornography. This information can, in turn, form the basis for search warrants of a person’s phones, laptops, and other electronics.

Court Procedure for a Child Pornography Cases Sarasota, Florida

First, the local state’s attorney’s office will typically prepare a charging document alleging that a person has committed one or violations of Florida Statute 827.071 or other criminal statutes.

Second, that person will likely be arrested on an arrest warrant and brought before a local judge. There, the judge will set a bail or release the individual to be supervised pending trial. Conditions of supervision might include that the individual not leave the local area, wear an electronic monitoring device, or that the person report to a supervising officer (among other possible conditions).

Third, the person will be directed to enter a plea to the charge(s) filed against him or her. If the person pleads “not guilty” to the charge(s), the matter will be set for trial.

Fourth, at a trial, the prosecution would be obligated to prove that the person committed the crime(s) with which he or she is charged to a judge or jury, beyond a reasonable doubt. Here, one or more defenses can mean the difference between a conviction and a “not guilty” verdict.

Fifth, if the person is convicted of one or more crimes, then the judge will sentence the person. Multiple sentences can be made to run back-to-back to one another, and sentences can include terms requiring the individual to register as a sexual offender, attend treatment, and/or pay restitution to a victim who suffered some financially-compensable harm.

Musca Law is a Good Choice for Florida Defendants Facing Child Pornography Charges in Sarasota, Florida

Child pornography charges can upend a person’s life and cause untold amounts of stress and worry – especially if they are not true. Musca Law is in courtrooms all across Florida, defending its clients’ rights and requiring the prosecution to prove its case against clients as required by law. Attorney John Musca has received accolades from the National Trial Lawyers Association and has been designated as one of the Top 100 Trial Lawyers in the country. His professionalism and the way in which he cares about his clients is reflected in his Perfect 10 out of 10 score on the website Avvo.com, which permits peers and clients alike to provide reviews and feedback about attorneys.

Musca Law handles child pornography cases all across the State of Florida. If a client cannot make it into one of the firm’s offices, chances are that Musca Law will be able to come meet with them at a more convenient location. Musca Law is available 24 hours a day, seven days a week to speak with individuals facing child pornography charges in Florida.

Strong Legal Defense for Your Child Pornography Charge

The repercussions of a sex crime or child pornography conviction far outlive a prison sentence and will have bearing on a person’s personal and professional life. Don’t be afraid to put the skills of an experienced Florida criminal defense attorney on your side. The legal team at Musca Law has the experience and resources required to help fight your conviction. Schedule a free consultation with our law firm today by calling (888) 484-5057.