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Child Pornography Lawyer in St. Petersburg, Florida

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Child Pornography Crimes, Laws and Legal Defenses in Florida

The State of Florida aggressively prosecutes child pornography crimes.  When a person possesses material that is considered harmful to children, they are often punished to the fullest extent of the law.  Individuals who face these charges must understand that they are serious and could result in severe consequences such as jail time, monetary penalties, social bias, and more.

Unfortunately, there are several cases where a person is wrongfully accused of these crimes, which is why they should never take these charges lightly. If you are facing child pornography charges in Florida, it is crucial that you contact a Florida child pornography defense lawyer who is knowledgeable of the law and able to advise you of your legal rights and possible defenses.

It is important for those accused of child pornography-related crimes in Florida that they have a right to remain silent if taken into custody as well as a right to refuse a warrantless search and seizure of their property.  By working with a seasoned St. Petersburg criminal defense attorney, you will be able to understand the nature of the charges against you and what you can do to protect yourself.

Teen Sexting and Child Pornography Charges in St. Petersburg, Florida

Individuals who are under the age of 18 may be accused of a child pornography-related charge as a result of possessing a video or image of another their same age, whether it is on a computer, cellphone or other electronic device.  The Florida Legislature enacted a special statute for juveniles who are accused of this crime, also known as “sexting.” Notwithstanding, the accusation is extremely serious and could result in severe consequences.

Defenses to Sexting Allegations under Florida Law

A defense to sexting is that the child did not request the image to be sent to their cell phone or other electronic device, and they reported it to a parent, legal guardian, school official, or police officer.  This defense is inapplicable if the child distributes or transmits the image or video to a third party who is not a parent, legal guardian, school official, or police officer.

Florida Statute Section 847,0141(2)(a) considers the transmission or distribution of numerous videos or images to be a single offense if they were transmitted or distributed within the same 24-hour timeframe.  

Child Pornography Related Charges In Florida

In Florida, a person can face numerous charges related to child pornography.  Each crime carries with it serious consequences. These offenses are as follows:

Distribution of Child Pornography: If a person directs, produces, advertises or disburses images or videos of children engaged in sexual acts, he or she can be convicted of the crime of distribution of child pornography.  This crime also includes images or videos that depict sexual activity performed by a minor (under the age of 18). In these instances, the prosecution must prove that the accused knew that the individual in the image or video was a minor and they distributed it, nonetheless.  

Those who are convicted of distribution of this offense in Florida can face up to 15-years in jail and will be required to register as a sex offender on the National Sex Offender Registry.

Exposing a Minor to Pornography: In Florida, a person can be convicted under Florida State Statute 847.013 if they knowingly expose a child to pornography.  This can include any act of exposure a minor to a presentation, image, video, exhibition, or movie that the accused knows is pornographic in nature.  This offense also includes the renting or selling of pornographic images, movies, or videos.

If a person is convicted of exposing a child to pornography, they will be charged with a misdemeanor in the first-degree, which is publishable by up to 1 year in prison.  The accused will also be required to pay up to $1,000 in monetary fines. Those who are repeat offenders in this regard face harsher consequences, including extended jail time and hefty monetary fines.

Manufacturing of Child Pornography: An individual can face the charge of manufacturing of child pornography if they solicit or produce pornographic videos, images or live sexual acts involving children.  

Anyone facing this charge may be sentenced to up to 15 years in prison and be required to register on the National Sex Offender Registry.  

Possession of Child Pornography: An individual can face possession of child pornography charges if they possess or download any content that depicts a minor engaging in any form of sexual conduct as defined under Florida Statute Section 847.001(16).

Those convicted of this crime can be sentenced to up to 5 years in prison and could also face similar federal charges.  Those who share the pornographic material with others could face up to 15 years in jail and face an array of other serious consequences.

Transmission of Child Pornography: A person can be convicted of transmission of child pornography if they cause to be delivered or send any data, images, or information to another individual through the use of internet or electronic device such as a computer or cellphone.  Every single document, video or image qualifies as one single charge. The penalties associated with this offense, which is a felony in the third-degree, may face up to 5 years in jail and a maximum fine of $5,000. The individual will also be required to register as a sex offender on the National Sex Offender Registry.

Charges For Child Pornography May Include Other Crimes

In some set of circumstances, those who are charged with a child pornography-related offense may face additional charges as well. These are highly dependent upon the facts of each case. In general, those accused may be charged with the following additional offenses: 

  • Sexual battery of a minor;
  • Rape or statutory rape of a minor;
  • Folding of a minor;
  • Lewd behavior with a minor child; or
  • Other sex acts with a minor.

Anyone who is engaged in a sexual act against or with a minor qualifies as a sex offender in Florida.  Children are not able to consent to engaging in sexual acts. That is why child pornographic-related offenses are prosecuted heavily in Florida. Working with a seasoned Florida criminal defense attorney will ensure you are able to launch an early defense against your charges in order to have the strongest case possible.

The Severe Penalties Those Convicted Of Child Pornography Face

Those who distribute child pornography through the mail or over the internet face state and federal charges. Those convicted of a child-pornography related offense in Florida may be faced with the following consequences:

  • A prison sentence of 5 to 30 years.
  • A life sentence for those who are repeat offenders.
  • Sex offender registration: Individuals convicted of child pornography could be forced to register on the National Sex Offender Registry as well as Florida’s own sex offender registry. In some instances, convicted offenders will have to register for life.
  • Difficulties finding gainful employment: A lot of employers refrain from hiring individuals who have been convicted of child pornography.
  • Restrictions associated with being in the presence of children: Individuals convicted of child pornography may be restricted as to whether they are allowed around children, including their own.

The state of Florida, as well as the federal government, have zero tolerance for those who commit sexual crimes involving minors.  Even having one photograph or video in a person’s possession can result in serious charges. Federal statutes allow for sentencing enhancements if the child depicted in the video or image is under the age of 12 or if the depiction is masochistic or sadistic in nature.  The penalties associated with these charges are extremely serious and require the assistance of a well-versed Florida child pornography attorney to help you learn more about your legal options as well as the defenses that may be available in your case.

Steeper Fines And Penalties

In certain circumstances, a person can face a harsher sentence than the mandatory minimums under Florida law.  This can occur if the accused has over 4 images or videos of a child engaged in sexual acts. Additionally, a person can also face the aggravated possession of child pornography if certain criteria are met.  This includes the following:

  • A child who is under the age of 4;
  • Sadomasochistic abuse of a child;
  • Sexual battery of a child;
  • Sexual bestiality involving a child; or
  • Any movie that depicts a child engaged in sexual acts.

Definition of Child Pornography According to Florida Law

Under Florida Statute Section 847.001, child pornography has been defined as any video, picture, image or photo depicting a person who is under the age of 18 engaging in a sexual act. Florida law contains a multitude of criminal statutes that prohibit acts relating to child pornography located in two different chapters, Chapter 827, F.S., and Chapter 847.

Florida Statute Section 847.001(3) also defines the legal phrase “child pornography” to mean any video, photo, image, website image or picture downloaded from the web that depicts a minor child (under 18 years of age) engaged in a sexual act or sexual conduct.

Florida Statute Section 847.001(16) defines the term “sexual conduct” to mean:

  • Actual lewd exhibition of the genitals;
  • Actual sexual intercourse;
  • Deviate sexual intercourse;
  • Actual lewd exhibition of the genitals;
  • Masturbation;
  • Sadomasochistic abuse;
  • Simulated sexual intercourse;
  • Sexual bestiality;
  • Physical contact with a minor child’s clothed or unclothed genitals, pubic area, buttocks, or breast (if the child is female), with the intent to gratify or arouse the sexual desire of either party; or
  • an act or conduct that constitutes or simulates sexual battery that will be committed or is about to be committed.

Florida law distinguishes between child pornography, which is illegal, and child erotica, which is generally not illegal.  “Child erotica: includes children that are depicted in photographs in a manner that does not meet the definition of sexual conduct, even if they are partially or fully naked.

Third Degree Felony for Possession of Child Pornography

A person can be convicted of a third-degree felony under Florida law for transmitting, possessing, distributing, and manufacturing child pornography under Florida Statute Sections 847.0135, 847.0138 and 827.071. A third-degree felony is punishable by up to 5 years in jail and includes an accusation of downloading or viewing any child-pornographic image.

If an accused had sent the images to another individual, he or she may face second-degree felony charges that carries with it a penalty of up to 15 years in jail.  

Producing or promoting child pornography is associated with severe consequences, including up to 30 years in jail for each charge.  

If an individual shares the images with another person, they may be charged with a second-degree felony that is punishable by a maximum of 15 years in prison.

Promoting or producing the child pornography image carries the most severe penalties which can be charged as a first-degree felony punishable by up to 30 years in Florida State Prison for each charge.

Examples of child pornography laws in the State of Florida include:

  • [Possession] [Control] [Intentional Viewing] of Material Including Sexual Conduct by a Child § 827.071(5)(a), Fla. Stat.; 
  • Possession of Material Including Sexual Conduct by a Child with Intent to Promote § 827.071(4), Fla. Stat.;
  • Giving a Minor Child Obscene Material § 847.0133, Fla. Stat.;
  • Transmission of Child Pornography by Electronic Device or Equipment § 847.0137(2) and (3), Fla. Stat.; and 
  • Transmission of Material Harmful to Minors by Electronic Device or Equipment § 847.0138(2), Fla. Stat.;

Separate Images Result in Separate Charges and Increased Penalties

Each pornographic image of children can be charged as a separate criminal offense.  The more offenses, the more severe penalties will be imposed on the accused. Prosecutors assert that each pornographic image requires time and effort to obtain and therefore, is an indication that the accused was interested and involved in obtaining or creating the illegal material.  

Notwithstanding, when images are downloaded from the internet, it is possible to obtain hundreds if not thousands of images at one time.  As such, an accused in this situation may not face more severe punishment.

Computer Pornography in Florida

The statute of limitations for computer pornography crimes in Florida is three years when the crime is charged under Florida Statute Section 847.0135(2) as a third-degree felony. 

The crime of computer pornography requires proof that (2)(a) a person knowingly compiles, enters into, or transmits by use of computer; (2)(b) makes, prints, publishes, or reproduces by other computerized means; (2)(c) knowingly causes or allows to be entered into or transmitted by use of computer; (2)(d) or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.

Possession of Photographic Material

Under Florida law, a person is prohibited from possessing pornographic photographs that depict a child engaged in sexual acts.  The applicable laws are as follows:

  • Section 827.071(4) is a Level 5 offense that makes it a second-degree felony to possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
  • Section 827.071(5) is a Level 6 offense that makes it a third-degree felony to possess any photographic material, motion picture, etc., which includes sexual conduct by a child.
  • Section 827.071(2) & (3) is a Level 6 offense that makes it a second-degree felony to use or induce a child in a sexual performance or promote or direct such performance.

Following a conviction of these offense, the court may order “Sex Offender Probation.”  This is where the court imposes certain special conditions on an offender, as set forth in Florida Statute Section 948.03(5)(b).  Other conditions may also be imposed pursuant to the discretion of the judge.  

Sex Offender Probation is designed to enhance the protection of the community and to require treatment/counseling for the offender. The offender is also required to submit two specimens of blood to the Florida Department of Law Enforcement to be registered with the DNA data bank.

Federal Child Pornography Laws

Child pornography-related offenses can also be prosecuted under federal law in addition to state law. Under 18 U.S.C. Section 2256(1) and (8), it defines child pornography as the visual depiction of a child under the age of 18 years old engaged in sexually explicit conduct. Illegal contrabands in this regard include any image of a child engaged in any type of conduct that is considered “sexually explicit.”

The term “sexually explicit” does not require that the image shows the child engaged in sexual activity but can include even a picture of a naked child if it is sufficiently sexually suggestive. The visual depiction can include:

  • images or videos downloaded from a website or the internet;
  • photographs;
  • undeveloped videotape or film;
  • video;
  • videotape;
  • undeveloped videotape or film;
  • data stored electronically which can be converted into a visual image; or
  • images stored on a computer disk or other electronic forum.

According to federal child pornography laws, a person can be convicted of a child pornography-related offense if they receive, distribute, produce, or possess any type of child pornography that affects interstate or foreign commerce.  This means that federal jurisdiction applies if a child-pornographic image or video is transmitted across state lines. Federal jurisdiction also applies if the equipment that created the image or video was moved across state lines.  The related offenses in this regard are as follows:

  • 18 U.S.C. § 2251 –Sexual Exploitation of Children (Production of child pornography);
  • 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; and
  • 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States.

Defenses Against Child Pornography

Those who are accused of child pornography-related offenses may raise a number of different defense to establish that they did not engage in such behaviors or that their legal rights were violated by law enforcement.  

The most common defenses to child pornography-related crimes are:

Adult Depiction: This defense applies if the individual in the image or video is 18 years old or older, even if they look younger.

Child Erotica: There are some integral ways to distinguish child pornography from child erotica.  Child erotica pertains to material that depicts children as sexual objects or in sexually suggestive ways.  This material is generally not considered to be child pornography. This defense is only available if the material is deemed to be child erotica and not child pornography.

Transitory Possession: This defense applies when a person receives child pornography unwittingly.  In these instances, people usually delete the image right away once they realize that the material qualifies as child pornography.  In these cases, the accused does not intentionally view the images and are unaware that the file left a thumbnail image or cache image on their computer or device. Transitory possession under these circumstances can be raised as a strong defense.

Illegal Search And Seizure: For law enforcement to search one’s belongings, including an electronic device, they generally must obtain a valid warrant before doing so.  A criminal defense attorney can challenge the legality of a search and seizure if material was obtained by law enforcement without a warrant.

Unknowing Possession: In some instances, an accused may obtain child pornography without knowing it.  These are circumstances where an accused’s computer is infected by a virus or a hacker installed files thereon that contain child pornography.  

Good Faith Destruction Or Reporting: In some set of circumstances, a person can raise this defense when he or she reported the receipt of child pornography to law enforcement and made a good faith attempt to delete the images.  For this defense to apply, the individual must have 3 images or less in their possession.

Substantial Assistance: Individuals can assert the defense of substantial assistance where they provide sufficient information that leads to the identification, arrest or conviction of another individual who is involved in child-pornographic activities.

Florida Child Pornography Attorney

Being convicted of a child pornography-related criminal offense in Florida, as provided above, will have serious consequences that will last your lifetime. Do not risk your future with a public defender of by representing yourself.  Contact a qualified St. Petersburg child pornography defense attorney to learn more about your legal rights and options. Only a skilled attorney can help you to develop the strongest defense possible in your case.

With over 150-year of combined legal experience, attorneys at Musca Law have helped countless individuals fight accusations against them. Our knowledgeable attorneys closely examine each case and build a strong defense to help their clients get their charges reduced or dismissed.

Working with our knowledgeable criminal defense attorneys in St. Petersburg, Florida will ensure you stand a chance at achieving a favorable outcome for your case. Contact our law firm today at (888) 484-5057 to schedule a free, no-obligation case evaluation to see how we can help you defend yourself and your rights.

 

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