Federal prosecutions for child pornography related crimes have increased over 1000 percent over the past decade. This increase is directly attributable to the rise in use of the Internet which facilitates the ease and proliferation of the possession and distribution of the offensive material. The Internet has also made it easier for law enforcement to perform investigations and obtain evidence. Therefore, a majority of child pornography offenses and prosecutions
are computer and Internet related.
Federal convictions in this area come with very severe penalties. To avoid, reduce or eliminate these sentences requires an experienced federal child pornography defense attorney specialist like Barton Morris to properly litigate these cases to ensure the best results.
Child Pornography is defined as an obscene visual depiction of a minor, or an actual minor (under the age of 18) engaging in sexually explicit conduct.
With respect to child pornography, Federal Law prohibits the following:
- Knowingly Transporting or Shipping
- Knowingly Receiving or Possessing
- Knowingly Reproducing for Distribution
The penalty in federal court for a conviction listed above is a minimum of five years in prison. The penalty is increased from five years in cases where the material involved the following:
- A prepubescent minor who had not attained the age of 12 years
- Distribution for profit or pecuniary gain
- Distribution to another minor
- Distribution to a minor with the intent to persuade the minor to engage in other
- Over 10 images but fewer than 150
- At least 150 but fewer than 300
- At least 300 but fewer than 600
- More than 600
If there was a prior conviction for a similar offense the minimum period of prison is increased to 15 years.
A Child Exploitation Enterprise an act which is part of a series of felony violations constituting three or more separate incidents and involving more that one victim and commits those offenses in concert with three or more other persons. A person convicted of this offense will be sentenced to a minimum term of 20 years in prison.
Enticement of a Minor to Engage in Sexually Explicit Conduct to Produce Depiction
Any person who persuades or entices a minor to engage in sexually explicit conduct for the purpose of producing a live visual depiction (photograph or movie) of that conduct, or uses a minor to assist in the production of such conduct and is convicted in federal court will be sentenced to a minimum of 15 years in prison. illegal activity like drug use or to entice or facilitate the minor to travel to engage in sexual conduct
Pre-Trial Release
If a person has been charged with a federal child pornography offense the pre-trial release of the person charged during the pendency of the case is always an issue. Federal Law presumes detention is appropriate because there are minor victims in these cases. When there is a presumption of detention that means strong arguments must be made to secure pre-trial release. If this is not accomplished the defendant must remain in federal custody during the
entire prosecution which hinders his ability to assist in this defense, continue to take care of their family and professional life and seek any treatment alternatives that may be appropriate. Pre-trial release arguments are very legal in nature but also are dependent upon the facts and circumstances of every case.
Common and Affirmative Defenses
One of the best defenses is to force the government to prove that the accussed conduct was done knowingly. By their nature, people can easily hide things in computers where even regular users are not aware about. There are many circumstances where others have had opportunity to access a computer. The government must prove knowledge beyond a reasonable doubt. If they are unable to do so then an acquittal or dismissal may be in order. The defense of knowledge is often lost when a defendant speaks to law enforcement before the case begins. It is important that people accussed of any sexual offenses do not make any statements to law enforcement without an attorney.
Because Federal Agents will often pretend to be minors online to catch offenders, entrapment is a defense that must always be considered. The entire communication history must be examined carefully. If they do not have his history available then a presumption of entrapment can be argued.
Determining the actual age of the “children” in child pornography cases can be a source of a strong defense. The presence or absence of pubic hair is easily manipulated and may reflect characteristics or a grooming preference rather than age. Producers of these images have been known to look for individuals of legal age who appear very young to use in pornographic productions. There is an affirmative defense to many charges if the images were created using actual persons who were over the age of 18. O
Unlawful search and seizure issues must always be examined as most prosecutions begin with a federal search warrant. It is very important to determine the government’s justification for a particular search and seizure or search warrant and ensure properly it extends to the examination of the computer or computer files. There is a substantial body of case law dealing with situations where law enforcement was looking for evidence of drug dealing and comes across child porn evidence. These searches must be challenged. Computer repair workers also sometimes will alert authorities upon discovery of what they believe to be unlawful but that does not allow the police to search without a warrant.
Further, independent forensic computer examinations are necessary in almost every case. The government must not be trusted to provide the information about what and how much content and material exists and the nature of this content as unlawful.
Mitigation Arguments
Often times the best defense in child porn cases is to demonstrate that the health issues that are behind the offending conduct are the result of an illness, which can be treated. The court and prosecuting attorneys must be convinced that treatment options area available and warranted. Many offenders only fantasize and do not seek to have personal contact with minors. This is a very important distinction which must be evaluated. Sex offender risk assessments and evaluations are very important, effective and necessary tools to use in ensuring the best outcome in many cases.
Secret Service Investigations
The United States Secret Service regularly conducts online investigations to enforce federal child porn laws. They are the lead investigative agency in the United States for Child Pornography related offenses. While other agencies still investigate, the look to the secret service as the experts. They conduct extensive online investigations nationally. They create posts on known websites such as craigslist in an attempt to attract offenders. They will pretend to be minors online which means that entrapment defenses must always be examined and investigated.
Common and Known Photographic Series
Because many photographs are questionable as to determining whether the child is a minor the Secret Service keeps a database of photographs that have been previously been “proven” to be offensive material. They will compare the photographs in question to their database and look for matches. There are several known collections of photographs. The older and well-known series include the KG (“kindergarten”), KX and Helena series. The “Misty” series
is more recent well known sequence of images involving a girl named Amy. Possibly the most well known child pornography victim is Masha Allen who eventually testified before he United States Congress about the impact the crimes against her had and continue to have on her. Often times offenders do not know the photographs they possess are a part of an identifiable series but if they are, the question of whether they are prohibited by federal law has been legally established.
A Trial Attorney is Necessary for the Best Defense and Result
Jurors are most likely dealing with these types of cases for the first time and therefore often times unreceptive to the fine legal and factual distinctions that are made during trial in the defense of these cases. An experienced and seasoned federal trial attorney is necessary to do the work necessary during jury selection and using effective expert testimony and calm professional argument to successfully present a defense to a jury in a child porn case.
Civil Remedies
Federal law allows victims of child pornography to sue each offender for money. Protection from civil liability must also be taken into consideration when defending federal child pornography related charges. Despite the fact that the victim is currently an adult, they can still continue to recover and there are attorneys whose job it is to assist them.