Child Pornography Lawyers in Fort Myers, Florida
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Florida Child Pornography Laws, Defenses & Penalties
Facing infamous allegations of criminal acts can ruin a person’s life, especially when the allegations are false. Innocent until proven guilty is reserved for the courtroom. When allegations of sexual abuse arise, the court of public opinion immediately believes that the person is guilty. Consequently, a person under suspicion could lose their family, their jobs, get expelled from school or denied acceptance to an institution of higher learning, and have their reputation utterly ruined. Moreover, the person accused of possessing child pornography in a Florida court faces a long prison sentence in addition to tens of thousands of dollars in fines. The collateral consequences of a conviction for a crime of a sexual nature might obligate registration as a sex offender, even if the person never laid a hand on another.
The public perception of this class of crimes affords a person with a motive to lie or a person seeking retribution to fabricate allegations of a sexual nature. The mere perception that a person was somehow connected to a sexual offense is enough to destroy someone’s life as they know it.
- Where would you turn if someone claimed that you were in possession of child pornography?
- Would your family stand by you?
- Would your friends remain steadfastly by your side?
- Do you think you will be treated fairly by others who know what you are facing possession of child pornography charges?
In those dire circumstances, you will need experienced, knowledgeable, and battle-tested child pornography defense lawyers in Fort Myers, Florida to stand by you and fight with you every step of the way.
The Rights of Person Accused of Possessing Child Pornography in Florida
Every person charged with possessing child pornography in Florida has certain rights. In fact, every person facing allegations of criminal acts enjoy those same rights. Every individual has the right to refuse to talk to police, the right to refuse to talk to police if the person wants a lawyer present, the right to reasonable bail or bond, the right to refuse to allow the police to search your home, auto, personal possessions when the police officers do not have a warrant, and you need not volunteer to allow the police investigators to take a sample of your blood, saliva, or hair for DNA analysis.
The rights of the accused come from the U.S. Constitution and the Florida State Constitution. The rights of the person accused of the crime of possession of child pornography are as important to the person facing child pornography charges in Florida as they are to any other person charged with a crime.
In general, most people do not know what rights they enjoy in Florida and in the U.S. Therefore, a person who learns that he or she is under investigation for a violation of the child pornography laws in Florida or the child pornography laws in the U.S. must speak with competent, aggressive, and successful child pornography defense attorneys in Florida. A knowledgeable Fort Myers defense lawyer will explain all of your rights to you, explain your options, and immediately begin plotting a defense against the case the government is building against you.
Do Not Delay Your Defense Strategy
Waiting until you are formally charged to talk with a skilled Florida criminal defense lawyer could severely damage your defense. The best defense strategy is to get out in front of the charges and work with your Florida criminal defense lawyer to collect exculpatory evidence, which is evidence that tends to show your innocence, preserve critical physical evidence, and interview witnesses before law enforcement agents do to lock in their stories before the police have a chance to interview them first.
The smallest details in child pornography cases in Florida can be significant to a person facing charges and could mean the difference between incarceration and freedom, along with an opportunity to rebuild your reputation after facing false allegations of possession of child pornography.
Transmission of Child Pornography and “Sexting”
Child pornography is defined by §847.001 simply as a minor depicted in an image committing a sexual act. A minor in Florida, for the purposes of the child pornography laws in Florida, is anyone who is under the age of eighteen. The state of Florida passed several laws designed to protect children from sexual abuse. One of those laws prohibits transmitting child pornography.
A person commits the crime of transmitting child pornography in Florida faces up to five years in a Florida state penitentiary. Transmitting, according to §847.0137, occurs when a person sends an image or data containing a depiction of a child engaging in a sexual act to another by electronic means. Electronic transmission includes the use of the internet, email, or another method of electronic dissemination of the image. Transmission of pornography is a third-degree felony and is punishable by a term of imprisonment not to exceed five years, according to §775.082.
Sexting is also a criminal act in Florida. Sexting, or the act of sending a photograph of another depicted in the nude or engaged in a sexual act, occurs when a person under eighteen years-of-age sends a nude photograph of another that is “harmful to minors.” Imagery is harmful to minors under Florida law when the image depicts a person in a state of nudity or sexual arousal, the image arouses the prurient interest, is shameful, or arouses a morbid interest, and is offensive to the standards of the community in terms of what should or should not be shown to a minor. However, imagery or videos depicting someone in committing a sexual act may fall under child pornography laws.
The crime of sexting is not the same as transmission of child pornography according to §847.0141. In Florida, the legislature recently passed §847.0141 to distinguish the two crimes. Section 847.0141 gives a minor an opportunity to avoid facing criminal charges if certain conditions are satisfied. First, the child must show that he or she did not ask to receive the photograph, then the child must report the incident or take reasonable steps to report receipt of the offending photo or video to a parent, guardian, law enforcement officer, or school official, and the child must not have forwarded the image to anyone else. If the child meets all three conditions, then the child cannot be charged with a crime.
Florida’s legislature took a common-sense approach to daily life in the age of modern technology and how technology integral technology is in the lives of all children, but especially teens. The child will not face a sexting charge for the first offense. Instead, the investigating law enforcement authority must issue a noncriminal citation to the child or the child could appear before the Florida juvenile court and contest the issuance of the citation. The juvenile must perform eight hours of community service and pay a $60.00 fine and take a cyber-safety course if there is one available, within 30 days. Failing to satisfy those conditions could cause the court to issue a contempt citation against the child. The court can impose age-appropriate punishments on the offending child but cannot incarcerate the child for that charge, unless the child commits a subsequent offense.
Crimes of Child Pornography in Florida
Florida law devotes an entire chapter to “Obscenity,” under which some of the charges of child pornography fall. The obscenity statute encompasses numerous crimes. Additionally, other child pornography charges fall under the child welfare statute. Therefore, knowing what charges you face and understanding the nature of the charges will help you and your child pornography defense lawyer develop a case-specific strategy to defend the charges. Your lawyer will also educate you on the potential penalties you face, including the maximum sentences, minimum-mandatory sentences, fines, and collateral consequences of a guilty finding.
Distribution of Child Pornography - Distribution of child pornography is a crime for which a person could receive up to fifteen years in prison as a second-degree felony. In addition to the potential maximum sentence allowed under the law, the convicted offender must comply with Florida’s sex offender registry board requirements. A person is guilty of distribution of child pornography in Florida when the person directs, produces, advertises, or disburses, videos or images of a child performing sex acts. The state prosecuting authority must prove that the person accused of the crime knew the child was younger than eighteen years-of-age and committed the act anyway under §827.071.
Possession of imagery depicting a child in a sexual act with the specific intent to promote or distribute the imagery is a third-degree felony. Section 827.017(4) indicates that possession of three or more images, videos, or other media meeting the statutory definition satisfies the intent requirement. This crime is a third-degree felony in the state of Florida.
Possession of Child Pornography in Florida - Possession of child pornography in Florida falls under three statutes. Downloading, viewing, possessing, or transmitting child pornography are considered third-degree felonies in Florida as defined by §§827.017, 847.0135, and 847.0138. A third-degree felony carries with it a five-year maximum state prison sentence.
Each Image Carries Additional Charges With Additional Punishments if Convicted
Persons charged with possession of child pornography could face one charge for each image under his or her possession and control. However, many images can be downloaded or viewed in one incident. Thus, the need to seek punishment for possession of every image is unnecessary in most circumstances, even though the prosecutors might argue that each image deserves its singular punishment.
Anyone convicted of possessing, disseminating, or producing child pornography will be placed on “Sex Offender Probation,” pursuant to §948.03 in addition to all of the standard conditions of probation along with other specific probationary restrictions.
Federal Child Pornographic Laws
Federal criminal laws dovetail with Florida state laws on child pornography. Under 18 U.S.C. §2256(1) and (8), child pornography is a person under eighteen years-of-age who is shown in a sexually explicit act. The picture does not need to show the child engaged in an activity, because a suggestive photograph could suffice under federal law. The minimum penalty under federal law for creating, producing, or reproducing child pornography is fifteen years in a federal penitentiary. The maximum sentence is 30 years.
Child pornography is not limited to photographs under federal law. Child pornography can include videos, videotapes, downloaded imagery from the internet, undeveloped negatives, stored data that can be retrieved in such a manner that depicts a pornographic image, or electronically stored images.
The federal authorities acquire jurisdiction to prosecute child pornographic offenses when a person uses some mechanism that involves commerce. For example, using the U.S. mail, sending a photo via the internet, or via email. Because almost every instance of child pornography involves electronic communication, federal law enforcement agencies could pursue charges against anyone possessing merely one photograph. However, the “feds” usually pursue offenders who are actively making, trading or soliciting child pornographic imagery.
Defending A Child Pornography Charge in Florida
The person charged with possession of child pornography in Florida is not automatically guilty. Building a strong defense requires a multi-tiered approach. The best defense will attack the government’s actions procedurally and will fight the charges substantively as well.
The defense team must closely examine all of the evidence obtained by the government and exploit weaknesses. Successfully arguing that the person depicted in the material was an adult at the time the image was created. The defense could try to locate the person observed in the image and try to ascertain that an individual’s age when the image was captured.
The defense could argue that the imagery is child erotica instead of child pornography. Admittedly, this is a fine line to walk. Defining child erotica for a jury might require the use of an expert witness to talk about the difference between children depicted in suggestive ways versus children actually engaged in a sexual act. The difference is truly one of degree because child erotica tends to fall short of the lascivious intent to satisfy Florida’s legal definition of conduct that is sexually explicit.
The Transitory Possession Defense
Another viable defense against possession of child pornography charges in Florida is claiming transitory possession. Transitory possession occurs only momentarily, like clicking on an image and then closing it almost immediately because the person does not want to see what is shown. The person might try to delete the file but leave “metadata,” or a thumbprint behind after he or she deletes the picture. Such transitory possession tends to negate the mens rea, or guilty mind, requirement under Florida law that the person who intentionally possesses or intentionally views child pornography is guilty. Showing the person did not have the intent to view the image could be a complete defense.
The Unknown Possession of Child Pornography Defense
A similar argument could be made for unknowing possession of child pornography. For example, a hacker or virus could have merged or sent files from one computer to another unbeknownst to the person charged. In that instance, the government would have a difficult time proving intent on behalf of the defendant. Notwithstanding, a situation such as this illustrates perfectly why obtaining experienced legal counsel as soon as possible after learning about allegations of possession of child pornography could preserve valuable evidence for the defense and help win justice for the person who was wrongfully accused of possessing child pornography.
The Substantial Assistance Defense
Another substantive defense that attacks the heart of the government’s case relates to destroying the images or reporting the images to the authorities. This is often a viable defense against federal charges, although it can be used in state court as well. Making a good faith effort to report the existence of these obscene materials to law enforcement could be an affirmative defense to the charges.
Additionally, the prosecution team could authorize possession of child pornography for the sole purpose of trying to identify the child depicted in it. This line of defense is known as the substantial assistance defense. It is hard to imagine why a prosecutor could press charges against someone trying to identify a child or help convict the guilty, but it does happen.
Procedural Defenses in Florida Child Pornography Cases
Procedural defenses as sometimes referred to as “loopholes,” or “technicalities.” Constitutional violations for unlawful searches and seizures or violating a defendant’s rights are not technicalities. Consequently, an experienced child pornography defense attorney in Florida will know how to attack the actions of the law enforcement officers during the investigation to show that they seized computer equipment unlawfully, unlawfully tapped a telephone, coerced a confession, or failed to read Miranda warnings. Also, the evidence might show that the police entrapped the person and coerced him or her to commit a crime.
The defense team can challenge whether the warrant that issued authorizing the seizure and analysis of a cell phone, computer, tablet, or other device issued upon probable cause. The defense might also be able to show that the police misstated the evidence or that they used an unreliable source to obtain evidence against the accused.
Successfully attacking the government’s case can lead to the judge excluding evidence from the trial, which in some cases, could result in a dismissal of all charges because the government will not have enough evidence to go to trial.
In addition to the judge ruling that physical evidence seized by the police is inadmissible, the defense can argue that any statements the defendant made should not be used at trial because the police violated the defendant’s right to remain silent. Having a statement thrown out of court is a huge victory for the defense and significantly hampers the state’s attorney’s case.
Child Pornography Defense Attorney in Lee County, Florida
Do not risk representing yourself or choosing an over-worked public defender to defend your child pornography-related offense. A conviction will have serious legal consequences that will last a lifetime. Contact our qualified child pornography defense attorney in Fort Myers, Florida to learn more about your legal rights and options. If we are able to represent you, we will be dedicated to you and help you develop the best legal defense possible for your case.
With over 150-year of combined legal experience, Florida criminal law 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.
Free Case Review at Our Law Office in Fort Myers, Florida
Working with our knowledgeable criminal defense attorneys in Fort Myers, Florida will ensure that 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.