 Federal criminal statutes are replete with overlapping laws covering similar behavior. For example, an individual accused of conspiring to commit wire fraud could be charged with general conspiracy under 18 U.S.C. § 371, or he could be charged with wire fraud conspiracy under 18 U.S.C § 1349. The difference is the range of punishment available under the different statutes.
Likewise, depending on certain activities, child pornography is covered by at least three chapters of Title 18 of the United States Code: 109A, 110, and 117. This page lays out the basics of a federal child pornography criminal charge, beginning with the most specific statutes.
18 U.S.C. § 2252A
The main federal criminal statute addressing child pornography is 18 U.S.C § 2252A. There are six different categories of activities covered by this statute, with each having different components:
- (a)(1)--knowingly mailing, transporting, or shipping in interstate or foreign commerce by any means, including by computer, any child pornography;
- (a)(2)--knowingly receiving or distributing
- any child pornography that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or
- any material that contains child pornography that has been mailed, shipped or transported in interstate or foreign commerce by any means, including by computer;
- (a)(3)--knowingly—
- reproducing any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or
- advertising, promoting, presenting, distributing, or soliciting through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—
- an obscene visual depiction of a minor engaging in sexually explicit conduct; or
- a visual depiction of an actual minor engaging in sexually explicit conduct;
- (a)(4) either—
- in the special maritime and territorial jurisdiction of the United States [(this has a specific definition)], or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country, knowingly selling or possessing with the intent to sell any child pornography; or
- knowingly selling or possessing with the intent to sell any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;
- (a)(5) either—
- in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country, knowingly possessing any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or
- knowingly possessing any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or
- (a)(6) knowingly distributing, offering, sending, or providing to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct—
-
- that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer;
- that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or
- which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer,
- for purposes of inducing or persuading a minor to participate in any activity that is illegal.
The punishment for being convicted of a federal child pornography charge is quite severe:
- No less than 5, and no more than 20, years in prison, and a fine. This punishment is available for those who have been convicted of (a)(1), (a)(2), (a)(3), (a)(4), or (a)(6) as detailed above.
- No less than 15, and no more than 40, years in prison, and a fine. This punishment is available for those who have been convicted of (a)(1), (a)(2), (a)(3), (a)(4), or (a)(6) and have a prior conviction under certain federal and state statutes relating to child pornography, sexual assault, and sex trafficking.
- Up to 10 years in prison, a fine, or both. This punishment is available for those who have been convicted of (a)(5).
- No less than 10, and no more than 20, years in prison, and a fine. This punishment is available for those who have been convicted of (a)(5) and have a prior conviction under certain federal and state statutes relating to child pornography and sexual assault (but apparently not sex trafficking).
- No less than 20 years, and up to life, in prison, and a fine. This punishment is available for those who have engaged in a child exploitation enterprise. A child exploitation enterprise involves the violation of certain federal statutes as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and the commission of those offenses in concert with three or more other people.
Affirmative DefensesBecause of the severity of the federal child pornography statutes, certain affirmative defenses are provided for certain subsections. For example, it is an affirmative defense to charges brought under (a)(1), (a)(2), (a)(3)(A), (a)(4), or (a)(5) that
- The alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct, and each person was an adult at the time the material was produced; or
- The alleged child pornography was not produced using any actual minor or minors.
There is an additional affirmative defense for (a)(5) if the defendant
- Possessed less than three images of child pornography; and
- Promptly and in good faith, and without retaining or allowing any person (other than a law enforcement agency) to access any image
- took reasonable steps to destroy each such image; or
- reported the matter to a law enforcement agency and afforded that agency access to each such image.
The affirmative defenses have a slew of exceptions. For example, if the defendant attempts to make the affirmative defense that the alleged child pornography was not produced using any actual minors, he cannot do so if it involves a prosecution involving child pornography as defined by 18 U.S.C. § 2256(8)(C), which is discussed here. Additionally, if the defendant wishes to bring up his affirmative defenses to charges brought under (a)(1), (a)(2), (a)(3)(A), (a)(4), or (a)(5), he must do so within the time period provided for pretrial motions and no later than 10 days before the commencement of trial.
To prevent needless and endless scrolling, the discussion of federal child pornography has been continued on the next page. (The link will be active soon.) If you have any questions about federal child pornography criminal charges, please contact the Law Firm of Christopher M. Choate.
|
