Overview of Child Pornography Charges in Federal and State Court
The United States government and most state law enforcement agencies are investing considerable resources in the investigation and prosecution of child pornography possession, distribution and production. While the ardent prosecution of these crimes is understandable and expected, law enforcement can become over-zealous. Even though any person may be subject to prosecution for child pornography charges, there is no legal excuse that justifies the wholesale violation of constitutional rights that frequently happens in these matters. When LEWIS & DICKSTEIN, P.L.L.C. is hired to defend these charges, we ensure that our clients are treated with dignity and their constitutional rights are faithfully protected. When a strong defense is needed, there is no defense team in Michigan that has the resources, tenacity and aggressiveness to match the defense provided by our firm. Whether the strategy is for a victory at trial or to achieve a lenient sentence, we have the skill and knowledge to achieve the best possible outcome.
Types of Federal Laws regarding Child Pornography Charges
- 18 U.S.C. § 2251- Sexual Exploitation of Children
(Production of child pornography)
- 18 U.S.C. § 2251A- Selling and Buying of Children
- 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
- 18 U.S.C. § 2256- Definitions
- 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States
Federal prosecutions commence with a complaint or a grand jury indictment.
Types of Michigan Laws Regarding Child Pornography
- MCL § 750.145C – Child Sexually Abusive Activity or Material, Possession of Child Sexually Abusive Material
- MCL § 752.365 – Obscenity – First Offense Misdemeanor, Second or Subsequent Offense is a Felony
Child Pornography Charges in Federal Court
Federal courts have definitely ruled that images of child pornography are illegal and not protected under the First Amendment. Child pornography is defined as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict a 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.
Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. Not all images of unclothed children are pornography (everyone has a naked baby picture in a bathtub for example). A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. Legally, there is an important distinction between child erotica and child pornography. The age of consent for sexual activity in a given state is irrelevant; any depiction of a minor less than 18 years of age engaging in sexually explicit conduct is illegal.
Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (See 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A). Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law.
Penalties for Child Pornography Charges
Federal Sentencing for Child Pornography
Any accusation that someone violated federal child pornography law is extremely serious. Convicted offenders face severe prison sentences, life-time registration as a sex offender, and years or decades of supervised release with onerous terms and conditions. For example, a first time offender convicted of producing child pornography under 18 U.S.C. § 2251, face fines and a statutory minimum of 15 years to 30 years maximum in prison. A first time offender convicted of transporting child pornography in interstate or foreign commerce under 18 U.S.C. § 2252, faces fines and a statutory minimum of 5 years to 20 years maximum in prison. Convicted offenders may face harsher penalties if the offender has prior convictions or if the child pornography offense occurred in aggravated situations defined as (i) the images are violent, sadistic, or masochistic in nature, (ii) the minor was sexually abused, or (iii) the offender has prior convictions for child sexual exploitation. In these circumstances, a convicted offender may face up to life imprisonment.
State Sentencing for Child Pornography
As in federal court, Michigan child pornography laws provide for stiff prison sentences upon a conviction. All child pornography offenses in Michigan are felonies, carry prison sentences as long as 20 years (up to life with a habitual notice), and sex offender registration. State prison sentences require a judge to set a minimum prison term and a maximum prison term. For example, a sentence may be 5 to 20 years in the Michigan Department of Corrections. The minimum number sets the earliest possible date the offender may be considered for release by the parole board and the maximum number sets the absolute time limit the individual can be kept in prison.
Defense of Child Pornography Charges in State and Federal Court
Defenses to child pornography can include, but are not limited to: inadequate proof the image is of a child, double jeopardy, temporary innocent possession, lack of knowledge, coercion, illegal search and seizure, Miranda violations, unpersuasive evidence, entrapment and more. It is not a violation of double jeopardy for a defendant to be prosecuted under state child pornography laws in addition to, or instead of, federal law.
If you are accused of possession, production, receipt or distribution of child pornography, you are in need of the strongest possible defense by attorneys who are fearless in court and adept at handling state and federal prosecutors. We are prepared to take your case to trial if you are not guilty and, if you are in need of a favorable plea bargain, we can help facilitate a sentence that minimizes any jail or prison time and maximizes rehabilitation. Many people believe that this type of prosecution means that life is over. We know this isn’t true and we can help you.
Call us today for a free consultation and confidential case evaluation at (248) 263-6800 or you can complete a Request for Assistance Form an a highly experienced defense lawyer will promptly contact you.