When is Child Pornography a Federal Crime?
A charge of production, possession, distribution, or receiving child pornography is one of the most difficult charges a person can face. The penalties in California under Penal Code Section 311 are severe: up to eight years in prison, fines of up to $100,000, and having to register as a sex offender for life. This applies to nearly any form the images may take, including undeveloped film negatives or files on a computer. 1
Not only will these images place a person in the crosshairs of the California justice system, but the United States government could also press charges. 18 U.S.C. Section 2256 defines child pornography as “any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age).” This includes photographs, videos, digital or computer generated images that look like an actual minor, and images created, adapted, or modified to appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law. 2
The landscape for punishment under the federal law is changing. In 2013, the U.S. Sentencing Commission recommended to Congress that the sentencing guidelines be overhauled. Until the law changes, however, the minimum sentences will remain harsh. Prison sentences have doubled in the last decade to approximately five years for possession of child pornography and 11 years for receipt and distribution. 3
When the Federal Government Gets Involved
What triggers federal prosecution? Typically, you could be charged with a federal crime when the prohibited images are transported across a state or national border. The Commerce Clause of the U.S. Constitution gives Congress the power to regulate interstate and foreign commerce. 4 The Supreme Court has held this to mean that Congress can control the paths of commerce (such as roads, shipping lanes, and railways), as well as what travels on those paths. 5
What this means is that if you were to go on the Internet and download an image in California that came from a server in Arizona, or if you were to receive photos in the mail from Oregon, you could be charged with a federal crime. Even if the child pornography image itself did not cross a state or international border, the federal law can apply if the materials used to store the image, such as the computer used to download the image or the camera used to take the photo, previously traveled in interstate or foreign commerce. 6
This means that the federal law has a very wide reach, and includes nearly every case of child pornography involving the Internet.
Contact the Criminal Defense Attorneys at Wallin & Klarich Today
If you or a loved one is facing state or federal criminal charges related to child pornography, it is critical that you speak to an experienced sex crimes defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience defending our clients accused of child pornography crimes at both state and federal levels. Our attorneys will fight to get you the best possible outcome in your case.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney near you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
1. [Cal. Penal Code §§311–312.7; 290]↩
2. [See, also, 18 U.S.C. § 2251; 18 U.S.C. § 2252; and 18 U.S.C. § 2252A.]↩
3. [http://sentencing.typepad.com/sentencing_law_and_policy/2013/02/us-sentencing-commission-releases-big-new-report-on-federal-child-porn-sentencing.html]↩
4. [U.S. Const., Art. 1, sec. 8, cl. 3.]↩
5. [United States v. Lopez, 514 U.S. 549 (1995).]↩
6. [http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html]↩
