Child Pornography Lawyer in Vero Beach, Florida (FL)
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Florida Child Pornography Crimes, Penalties and Potential Defenses
In Florida, child pornography-related crimes are heavily prosecuted in the State of Florida. In fact, when an individual has child pornography in their possession, this crime is punished to the fullest extent allowable by law. People who are charged with child pornography-related offenses face serious consequences such as extended jail time, monetary fines, social stigma and much more. That is why if you are facing these charges, you should contact a seasoned Florida child pornography defense lawyer who can advise you of your legal rights as well as possibly defenses that apply in your case.
You have the right to remain silent if you are facing child pornography crimes as well as the right to refuse a search and seizure of your belongings absent a warrant. By working with an experienced Vero Beach criminal defense lawyer, you will be able to better understand the charges that have been filed against you and the ways in which you can protect yourself.
Teen Sexting and Child Pornography Charges in Florida
Minors may face child pornography charges should they possess a sexually explicit image or video of a child who is their same age or younger, whether they are on a cellphone, computer or some other electronic device. The Florida Legislature created a statute to address this crime, which is referred to as “sexting.” Accordingly, the accusation is very serious and the accused could face severe consequences.
Defenses to Sexting Allegations under Florida Law
There are defenses available to those accused of sexting. This includes the claim that the minor did not request the image or video to be sent to their electronic device and they reported the receipt thereof to a police officer, legal guardian, parent, or school official. This defense does not apply if the minor sent the video to a third party who is not a police officer, legal guardian, parent, or school official.
Florida Statute Section 847,0141(2)(a) considers the transmission or distribution of numerous videos or images to be a single offense if they were transmitted or distributed within the same 24-hour timeframe.
Child Pornography Related Charges in Florida
There are several types of child pornography-related offenses in Florida. These are as follows:
- Distribution of Child Pornography. If an individual produces, directs, advertises or transmits videos or images of minors engaged in sexual behavior, he or she can be convicted of this crime. In order to convict an individual of this offense, the prosecution must establish that the accused knew that the person in the image or video was under the age of 18 and distributed the content nonetheless. Those who are convicted of this crime can face up to 15 years in prison and be forced to be placed on the state and federal sex offender registry.
- Exposing a Minor to Pornography. In Florida, a person can be charged under Florida State Statute 847.013 if they expose, with knowledge, a minor to child pornography, whether the content is an image, presentation, video, movie, or exhibition. This crime also includes the selling or renting of images, videos, or movies that are pornographic in nature. Should an individual be convicted of exposing a minor to child pornography, he or she could face a one-year prison term and be forced to pay a fine of up to $1,000. Repeat offenders face greater consequences, such as extended prison time and severe monetary penalties.
- Manufacturing of Child Pornography: A person can face this crime if they produced or solicited pornographic images, videos, or live sexual acts involving minors. Anyone facing this charge may be sentenced to up to 15 years in prison and be required to register on the state and federal sex offender registries.
- Possession of Child Pornography: Under Florida Statute Section 847.001(16), a person can be charged with the possession of child pornography if they download or possess content that shows a child engaged in any form of sexual conduct. Those convicted of this offense can face up to 5 years in jail as well as federal charges.
- Transmission of Child Pornography: A person can be charged with this crime if they cause to be delivered or send any images, data, or information depicting children engaged in sexual conduct through the use of an electronic device or the internet. Each document, image or video constitutes a single charge. This crime is charged as a third-degree felony where the accused could face up to 5 years in prison and a maximum fine of $5,000. If convicted, the offender will be required to register on the state and federal sex offender registries.
Charges for Child Pornography May Include Other Crimes
In certain circumstances, individuals facing child pornography-related charges may also be charged with additional crimes. These include the following:
- Lewd behavior with a minor child;
- Rape or statutory rape of a minor;
- Sexual battery of a minor;
- Folding of a minor; or
- Other sex acts with a minor.
To qualify as a sex offender in Florida, an individual must be engaged in a sexual act involving a child. If you are facing child pornography-related charges, you should contact a qualified Florida criminal defense attorney to ensure that your legal rights and interests are protected to the fullest extent of the law.
The Severe Penalties Those Convicted of Child Pornography Face
If a person distributes child pornography over the internet or through the mail, he or she could be charged with state as well as federal offenses. Those convicted in Florida may face the following consequences:
- 5 to 30 years in jail
- A possible life sentence for those who are repeat offenders;
- Sex offender registration (on both the state and federal level);
- Challenges finding housing and gainful employment; and/or
- Restrictions from being in the presence of children, including one’s own.
It is important to realize the severity of child pornography-related offenses on both the state and federal level. Even having one photo, image, or video of child pornography can have serious repercussions. Federal law allows for punishment enhancements if the child in the image, photo, or video is under the age of 12 and/or if the depiction is sadistic or masochistic in nature.
Mandatory Minimums, Increasing Fines and Penalties
In certain cases, an individual could be charged with a more severe punishment than the mandatory minimums established under the Florida law. This can apply if the accused individual has over 4 videos or images of a child engaged in sexual behavior. Moreover, a person could face the aggravated possession of child pornography if certain criteria are established. This includes the following:
- Sadomasochistic abuse of a minor;
- Sexual bestiality involving a minor;
- A minor under the age of 4;
- Sexual battery of a child; or
- Any movie that depicts a child engaged in sexual conduct.
Definition of Child Pornography under Florida Law
Under Florida Statute Section 847.001(3), child pornography is defined as “any image depicting a minor engaged in sexual conduct.”
Florida Statute Section 847.001(16) defines the term “sexual conduct” to mean the “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”
Third-Degree Felony for Possession of Child Pornography
Under Florida Statute Sections 847.0135, 847.0138 and 827.071, an accused can be convicted of a third-degree felony for the possession, transmittal, and manufacture of child pornography. A person can also be charged with a third-degree felony if he or she downloaded or viewed any child-pornographic image. The maximum prison sentence for a third-degree felony is up to 5 years in jail. Should the individual have sent the pornographic content to another individual, he or she can face up to 15 years in prison. If a person produces or promotes child pornography, he or she could be sentences to up to 30 years in prison. This behavior constitutes a first-degree felony in Florida.
Examples of child pornography laws in the State of Florida include:
- Giving Obscene Material to a Minor § 847.0133, Fla. Stat.;
- Transmission of Material Harmful to Minors by Electronic Device or Equipment § 847.0138(2), Fla. Stat.;
- Transmission of Child Pornography by Electronic Device or Equipment § 847.0137(2) and (3), Fla. Stat.
- Possession, Control, Intentional Viewing of Material Including Sexual Conduct by a Child § 827.071(5)(a), Fla. Stat.; and
- Possession of Material Including Sexual Conduct by a Child with Intent to Promote § 827.071(4), Fla. Stat.
Separate Images Result in Separate Charges and Increased Penalties
Each image of a minor engaged in sexual conduct can each be charged as a single crime in Florida. The more content, the greater the penalties that a convicted individual will face.
Notwithstanding, when images are downloaded from the internet, it is possible to obtain hundreds if not thousands of images at one time. As such, an accused in this situation may not face more severe punishment.
Computer Pornography in Florida
The statute of limitations for computer pornography crimes in Florida is three years under Florida Statute Section 847.0135(2) as a third-degree felony. The crime of computer pornography requires proof that:
- (2)(a) a person knowingly compiles, enters into, or transmits by use of computer;
- (2)(b) makes, prints, publishes, or reproduces by other computerized means;
- (2)(c) knowingly causes or allows to be entered into or transmitted by use of computer;
- (2)(d) or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.
Possession of Photographic Material
Under Florida law, a person is prohibited from possessing pornographic photographs that depict a child engaged in sexual acts. The applicable laws are as follows:
- Section 827.071(2) & (3) is a Level 6 offense that makes it a second-degree felony to use or induce a child in a sexual performance, or promote or direct such performance.
- Section 827.071(4) is a Level 5 offense that makes it a second-degree felony to possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
- Section 827.071(5) is a Level 6 offense that makes it a third-degree felony to possess any photographic material, motion picture, etc., which includes sexual conduct by a child.
Child Pornography under Federal Laws
As noted above, child pornography offenses can be prosecuted under both state and federal law. Pursuant to18 U.S.C. Sections 2256(1), (2) and (8), it defines child pornography as the visual depiction of a minor engaged in sexually-explicit conduct. “Sexually-explicit conduct” is defined under this law as actual or simulated:
- sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
- bestiality;
- masturbation;
- sadistic or masochistic abuse; or
- lascivious exhibition of the anus, genitals, or pubic area of any person.
The term “sexually explicit” can include images or videos that depict a child in a sexual manner, even if they are not engaged in sexually explicit conduct (i.e., if the child depicted in the content is naked). The visual depiction can include the following:
- video
- undeveloped videotape or film;
- videotape
- image
- photograph;
- videos or images that were downloaded from a website or the internet;
- data stored electronically which can be converted into a visual image; or
- images stored on an electronic device or external drive.
Under federal law, a person can face a conviction of a child pornography-related if they distribute, receive, possess or produce any form of child pornography that affects foreign or interstate commerce. This means that federal law applies if the image or video was sent across state lines or the equipment storing the image or video was transmitted across state lines.
The related offenses in this regard are as follows:
- 18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography);
- 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution, and receipt of child pornography);
- 18 U.S.C. § 2252A- certain activities relating to material constituting or containing child pornography; and
- 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States.
Defenses Against Child Pornography
There are a number of defenses that may be available to an individual charged with a child pornography-related offense. These include the following:
- Adult depiction. This defense is applicable if the person in the image or video is aged 18 or older. This defense is still available even if the adult looks younger than their age.
- Child erotica. Child erotica depicts a minor who is under the age of eighteen partially or completely naked. The genitalia or breasts may be clearly displayed, but lacking actual or simulated sexual intercourse or lascivious exhibition of the genitals or pubic area. This material is generally does not qualify as child pornography.
- Transitory possession. This defense only applies if the person receives pornographic unwittingly. In this instance, the recipient of the content typically deletes it once they realize it is child pornography. A thumbnail image or cache image may nonetheless remain on their electronic device. In this case, the transitory possession defense may apply.
- Illegal search and seizure. Law enforcement must generally obtain a warrant before searching an individual’s belongings for child pornographic content. If no warrant was procured, the content seized may be inadmissible in court.
- Unknowing possession. In certain cases, an accused may obtain child-pornographic content unknowingly. This typically applies if a computer is hacked or infected.
- Good faith destruction or reporting. A person can raise this defense if she or she attempted to delete child pornographic images that they unintentionally received. For this defense to be applicable, the person must have 3 images or less in their possession.
- Substantial assistance. Individuals can raise this defense where he or she is able to provide information that results in the identification, arrest, or conviction of another individual who engages in child pornography.
Speak With an Experienced Vero Beach Child Pornography Attorney
If you are facing child pornography charges in Vero Beach or anywhere in Florida, it is critical that you contact our experienced Florida criminal defense attorneys in order to safeguard your legal rights and interests. Only an experienced criminal law attorney can help you to create the strongest defense available in your case.
With more than 150 years of collective legal experience, the Florida criminal defense lawyers at Musca Law have successfully assisted thousands of individuals facing child pornography charges. We help our clients build the most strong defense possible, which may result in the reduction or dismissal of your case.
Working with our knowledgeable criminal defense attorneys will ensure you stand a chance at achieving a favorable outcome for your case. Contact our law firm today at (888) 484-5057 to schedule a free, no-obligation case evaluation to see how we can help you defend yourself and your rights.