Child pornography is illegal in California under Penal Code 311 PC, the state's primary statute that is used to file charges against someone. It is a crime to transport, duplicate, distribute, print, advertise, or have child pornography.
It is also illegal to engage in the act of hiring, or attempting to hire, minors with the intent to have them make pornographic images. There are many punishable offenses relating to child pornography.
For instance, sharing images in the context of an online porn group is just one of the many related acts punishable as an offense. There are a variety of child pornography crimes. Every act, distributing, producing, viewing, or downloading child pornography, is defined under different subsections of Penal Code Section 311 PC.
Regardless of the various subsections, every child pornography offense has one thing in common: each section requires the prosecutor to prove two crucial elements of the crime to convict you.
They must prove that you knowingly possessed images depicting minors engaging in sexual acts and that you knew the images showed someone under 18 engaging in sexual acts.
In other words, no matter the specific violation, a key component to all offenses under Penal Code 311 PC is that each requires the individual charged with committing a child pornography-related crime to have done so knowingly.
A person becomes guilty of a crime under California's child pornography laws if it can be proven they knew the nature of the pornographic material before sharing it, possessing it, etc.; and they knew the material's content showed a person under 18 engaged in sexual conduct. Our California criminal defense attorney will review the laws further below.
Review of the Various Child Porn Laws
Individual sections within Penal Code 311 PC address specific laws relating to child pornography. These include the following:
- Penal Code 311.1 PC, 311.2 PC: These sections relate to the distribution of child pornography. It is illegal to send, transport, produce, possess, or duplicate any child pornography with the intent to distribute it;
- Penal Code 311.3PC: This section relates to the sharing of child pornography and makes it a crime to develop, duplicate knowingly, print, or exchange it;
- Penal Code 311.4 PC: This section makes it a crime to knowinglyhire, employ, use, persuade, or coerce a minor to participate in the production of child pornography;
- Penal Code 311.10 PC: This section relates to the advertisement of nasty child porn for the sale or distribution of child pornography;
- Penal Code 311.11 PC: This section addresses the crime of knowingly possessing or controlling child pornography produced using a person under 18.
Penal Code 311 PC explains what constitutes “child pornography.” Any matter or material, films, photos, negatives/slides, videos, or computer-generated equipment, that depicts sexual conduct or sexual activity by someone under eighteen is considered child pornography. The term “sexual conduct” refers to acts such as intercourse, oral sex, anal sex, and masturbation.
What Are the Federal Child Porn Laws?
18 U.S.C. § 2252 criminalizes the willful possession, creation, distribution, and transportation of child pornography material. The Child Pornography Prevention Act of 1996 defines child pornography as
- “any visual depiction of a minor engaging in sexually explicit conduct, whether it's made or produced by electronic, mechanical, or other means.”
Put simply; this federal statute prohibits the possession, receipt, and distribution of sexual images of children.
If you willfully possess, distribute, or access child pornography with the intent to view it, then you are violating federal law. If you are convicted, the penalties include up to 15 years in federal prison for each offense and being named on relevant sex offender registries.
A related federal offense is the sexual exploitation of children under 18 U.S.C. § 2251, which penalizes anyone who attempts to persuade a minor to produce child pornography.
What are the Potential Penalties for a Child Porn Conviction?
A significant factor in deciding jail time for a child pornography offense is the volume and nature of the contraband images or videos seized by law enforcement.
For example, suppose the defendant had a small number of images depicting teenagers, for instance? In that case, most prosecutors consider this less severe than possessing many images depicting younger children.
If there is evidence that the defendant took immediate steps to meet children for sex in real life or communicated with them directly online, the impetus to seek jail time is much stronger based on the apparent need to protect minors.
“Wobblers” are crimes that can be charged as misdemeanors or felonies, which depends upon the specifics of a particular case, and whether there are any additional factors to be taken into account, such as previous criminal history.
Most child pornography crimes are charged as wobblers or felonies. Penalties for misdemeanor child pornography conviction include a maximum fine of $1,000—$2,500 and up to one year in jail. An individual must also be registered as a California sex offender for a minimum of ten years.
However, a felony child pornography conviction is punishable by a maximum of three years in state prison. Offenders found guilty of having committed child pornography-related crimes must register as sex offenders.
What Else Can a Child Pornography Conviction Affect?
The immigration status of an individual can be negatively affected by a child pornography conviction which is considered a crime involving moral turpitude.
Immigrationlaw says that certain criminal convictions can lead to deportation, with the individual then marked as “inadmissible” for future entry into the United States.
A child pornography conviction is included in these crimes and can lead to deportation, thus negatively affecting an individual's immigration status.
Additionally, under California law, convicted felons cannot acquire or possess a gun. If a child pornography violation is charged as a felony and the person is convicted, the offender will lose their Constitutional rights to own or possess a firearm.
What Defenses Are Available?
There are several common defenses used to contest child pornography charges are as follows:
- There is no actual child pornography, as defined by California law;
- The offender did not knowingly commit the act;
- There were legitimate purposes for the material, such as medical, scientiﬁc, or educational activities;
- Unlawful search and seizure took place. Evidence obtained illegally—either due to lack of a necessary search warrant or because it does not fall within a search warrant's parameters—can be thrown out;
- Circumstances qualifying as police entrapment occurred.
The defense to any criminal offense depends on the facts and circumstances of each case. These defenses don't always apply.
In persuading the prosecution to forgo incarceration in child pornography cases, crucial mitigating information is key. Understandably, a prosecutor's primary concern is the risk that the criminal conduct will recur or even escalate.
To deal with this concern, defendants could enroll in a treatment program or even pursue individual or group therapy from a mental health professional specializing in child pornography issues.
While this approach hopefully addresses any underlying mental health issues that lead them to possess these illegal contraband images, when appropriately documented, this type of therapy is a strong mitigating factor that a defendant is s committed to rehabilitation and the prevention of recidivism.
While presenting the strongest mitigation position possible, we can also challenge the legal basis for the charges. In most child porn prosecutions, the District Attorney obtains evidence by executing a search warrant where law enforcement seized one or more electronic devices of the defendant to be forensically analyzed by experts.
We might be able to challenge the validity of the search warrant and file a motion to suppress evidence to prevent the use of the seized evidence in court.
If you or a family member is under investigation or already charged under California state or federal laws discussed above, contact us to review all the details and discuss a possible defense strategy. Eisner Gorin LLP is located in Los Angeles County, California. Call (877) 781-1570 for an initial case review or use the contact form.