Federal Child Pornography Laws - 18 U.S. Code § 2251, 2252
The federal government takes children's safety very seriously— for that reason, federal child pornography crimes come with extraordinarily severe sentences.
Every state has its laws regarding child pornography. Still, when the images cross state lines (e.g., via mail, the Internet, or physical transport), these crimes fall under the federal government's jurisdiction.
For purposes of the law, child pornography is any visual depiction of a minor (i.e., under the age of 18) engaged in sexually explicit conduct for the purpose of sexual stimulation. This includes photographs, videos, and computer-generated images. It also consists of any indistinguishable visual depiction from an actual minor.
Numerous laws on the books deal with various aspects of child porn. Still, the most common federal charges involving the production or distribution of child pornography are Title 18 U.S.C. 2251 and 2252, respectively.
Section 2252 makes it a federal crime to possess, distribute, or transport child porn, which is described as any visual imagery that depicts children under 18 years old in sexual situations for sexual stimulation.
18 U.S.C. § 2252(a)(1) defines the serious federal offense of knowingly transporting or shipping child pornography using interstate or foreign commerce, or in affecting commerce by any means that includes a computer or mails, any visual depiction if it involved minors engaging in sexually explicit conduct.
18 U.S.C. § 2252(a)(2) defines anyone who knowingly receives or distributes any visual depiction of minors using interstate or foreign commerce. 18 U.S.C. § 2252(a)(3) establishes the sale, or possession with intent to sell, of child pornography images. Subsection (a)(4) makes it a federal crime to have possession of child porn.
18 U.S.C. § 2251 defines the sexual exploitation of children as a separate federal crime, including producing child pornography. Anyone who attempted to induce, entice, or persuade a minor to engage in sexual conduct or to make a video, picture, or other image is guilty of sexual exploitation. Our California criminal defense lawyers will examine these laws in more detail below.
Production of Child Pornography - 18 U.S.C. § 2251 Explained
More generally referred to as "sexual exploitation of children," 18 U.S.C. 2251 makes it a federal crime to knowingly do any of the following to create and distribute child pornography:
- Use, employ, induce, entice, persuade, or coerce a minor to engage in sexually explicit conduct to produce child pornography;
- Employ or persuade a minor to assist in the production of child pornography;
- Create an advertisement offering to buy or sell child porn or recruit people to participate in it.
Under 18 U.S.C. § 2251, parents or guardians of minors who permit their children to participate in the production of child pornography can be charged the same as those who produce the content.
It's also worth noting that it's possible to be charged with the sexual exploitation of children in the United States, even if the alleged actions occurred outside the country.
18 U.S.C. § 2251(c) imposes penalties for anyone who employs, uses, persuades, induces, entices, or coerces a minor to engage in, or anyone who has a minor assist any another person, any sexually explicit conduct outside of the United States or territories, to produce a visual depiction of this conduct.
A violation could occur by a foreign national producing child porn, then distributing the images or videos using the internet to people living in the United States. A conviction under this subsection carries a potential life sentence.
18 U.S.C. § 2251(d) addresses the issue of printing or publishing advertising either seeking or offering child pornography or for children to be exploited in producing child porn. Again, any violations carry a potential life sentence.
Distribution of Child Pornography - U.S.C. § 2252 Explained
Hand in hand with producing child porn (18 U.S.C. 2251) is the crime of distributing child porn (18 U.S.C. 2252). Under this law, it is a federal crime to knowingly, ship, receive, distribute, sell, reproduce or even possess any visual depiction of sexual activity involving minors. This includes any of the following methods of distribution:
- Physical transport of pornographic material (e.g., pictures, videos, etc.);
- Computer transfer or website;
- Text messages or other forms of electronic visual communication.
What Are the Federal Penalties?
You face significant penalties if you are convicted at the federal level of either the production or distribution of child pornography. The breakdown of federal sentencing guidelines for these crimes is discussed below. If you are convicted of U.S.C. 2251 production of child pornography, the penalties include:
- For a first offense: 15-30 years in prison;
- For a second offense, or prior federal or state violations relating to child porn or other child sex crimes: 25-50 years in prison;
- For a third or subsequent offenses, or more than two prior federal or state convictions related to child porn or child sex crimes: 35 years to life in prison.
If you are convicted of U.S.C. 2252 transporting, distributing, or selling child pornography, the penalties include:
- For a first offense: 5-20 years in prison;
- For a second offense, or a prior federal or state offense regarding child porn or child sex crimes: 15-40 years in prison.
If you're convicted of possession of child pornography, the penalties will include:
- For a first offense: up to 10 years maximum in prison;
- If the child porn depicts a prepubescent child or minor under age twelve: 10-20 years in prison;
- For a second offense, or prior federal/state offense regarding child porn or sex crimes: 10-20 years in prison.
What Are the Related Federal Offenses?
- 18 U.S.C. § 1461 - Mailing obscene or crime inciting material;
- 18 U.S.C. § 1462 – Importing or transporting obscene material;
- 18 U.S.C. § 1465 – Transport obscene material for distribution;
- 18 U.S.C. § 1466 – The business of selling obscene material;
- 18 U.S.C. § 1470 – Transfer obscene material to minors;
- 18 U.S.C. § 2251A - Selling and buying of children;
- 18 U.S.C. § 2252A – Activity related to material with child porn;
- 18 U.S.C. § 2260 – sexually explicit depictions of a minor to import.
What Are the Defenses Against Child Porn Charges?
Being convicted of federal child porn crimes can result in severe sentences, including mandatory minimum sentencing.
However, it is still possible to be falsely accused or victim of circumstance in such matters. A good federal criminal defense attorney can implement a variety of defenses to these charges. These are discussed below.
Perhaps you were unaware of the existence of child pornography or the activity surrounding it.To convict you, prosecutors must demonstrate that you knowingly participated in producing or distributing child porn. Your attorney may be able to argue, for example, that:
- You did not know your child was involved in child porn and did not give your consent to it;
- You were not aware that someone in your home was producing child porn; or
- Someone stored child pornography on your computer without your knowledge or consent.
Perhaps there is an affirmative defense for the possession of child pornography.
U.S.C. 2252 states explicitly that if you're charged with possessing child pornography, you can make an acceptable defense against the charge if you show that there were three or fewer instances of child porn in your possession, and in good faith, you either attempted to destroy the child porn or turned it over to law enforcement without allowing others to see it.
All the federal child porn offenses discussed above are considered serious violations of federal law. If you or a family member were accused of violating any part of 18 U.S.C. § 2251 or 2252, you would need to retain an experienced federal criminal defense lawyer to have the best chance of a favorable outcome.
Early intervention into your federal case by our law firm can dramatically impact the case's outcome. Perhaps we can negotiate with the federal prosecutor for a favorable resolution. First, we must review all the details to formulate a defense strategy. Maybe it's possible to avoid a conviction and jail time.
Call our law firm to review your case and legal options, or you can fill out the contact form. Eisner Gorin LLP is located in Los Angeles, but we provide legal representation across the United States on federal issues.