Child Pornography Lawyer in Stuart, Florida
Defense Attorneys Child Pornography Cases in Stuart, Florida
Florida law enforcement does not take possessing, making, or distributing child pornography lightly. The state's prosecutors also consider crimes related to child pornography to be grave offenses. Prosecutors seek lengthy prison sentences and judges in Stuart are ready to hand them out too.
Recent law enforcement activity in Florida suggests that police are more vigilant than ever in cracking down on possessors of child pornography. Even if law enforcement tries to tackle the problem of distribution of child pornography with zeal, they could use techniques that violate their target’s rights. Frequently, law enforcement officers resort to behavior that comes close to entrapment.
In this year alone, law enforcement officers arrested and charged seventeen people with possessing child pornography. The news media were gripped. Their headlines foretold of employees of Disney World and people from other professions who possessed photographs and videos of children posed in the nude or engaging in sexual activity. Prosecutors and police officers take great pride in zealously prosecuting people charged with possession of child pornography in Florida.
Sometimes, the police and state’s attorneys get it wrong and either mistakenly charge someone or overcharge someone after a child pornography sting. Even if the government wrongfully brought charges, the accused must vigorously defend that charge. It is folly to assume that everything will work out in the end, and that justice will prevail. The system of justice in our country is the best system man has devised, but it is far from perfect. Our justice system is run by fallible men and women who can make mistakes.
Hiring an experienced child pornography defense attorney immediately after being charged by police or immediately upon learning that the police have opened an investigation against you will assist with developing a viable defense strategy to limit exposure to the harsh prison sentences that follow from a conviction of possession of child pornography and the collateral consequences such as registration as a sex offender for life.
Turning to the seasoned, knowledgeable, and highly-skilled Stuart defense lawyers with Musca Law can help preserve your liberty and protect your future. Contact Musca Law today at (888) 484-5057 to learn how to protect your rights to a fair trial and obtain access to the justice guaranteed by the Constitution of the United States as well as the Constitution for the State of Florida.
Child Pornography Charges in Martin County, Florida
Florida law separates child pornography into several criminal charges. In most instances, the investigating officers and prosecuting attorneys will ask for the most severe charges to issue. The police only need to have evidence amounting to probable cause to make an arrest. Probable cause is a far cry from guilt beyond a reasonable doubt. Notwithstanding, the slightest amount of evidence collected by the police could force you to face criminal charges that carry harsh sentences and severe consequences.
Possession of Child Pornography
The police can charge a person with possession of child pornography for any image that meets the legal definition of pornography that depicts a child. The legal definition of child pornography under Florida law, simply stated, includes any picture that shows a person under the age of eighteen participating in sexual conduct.
Possession of child pornography in Florida is a third-degree felony. Accordingly, possession of one photograph or digital image could send a person to prison for up to five years. This is true even if the accused downloads only one image that satisfies the definition of child pornography.
Prosecution of child pornography charges is not limited to the law enforcement authorities in the state of Florida. Federal authorities have jurisdiction to file charges for possession of child pornography if the image was transmitted through the mail or via electronic transmission using the telephone or mobile communications. Under the federal penal scheme, the person convicted of disseminating even one photograph defined by law as child pornography could receive a fifteen-year federal prison sentence.
Exposing Minors to Pornography
Showing content considered to be pornographic is a crime in Florida if the person to whom the pornographic material is shown is younger than eighteen years of age. Pornography need not depict children to be a crime. Instead, the offense is committed by showing any pornographic imagery to a child under eighteen.
Exposing minors to pornography is a first-degree misdemeanor in Florida. The penalty for a first-degree misdemeanor conviction shall not exceed one-year commitment to the county jail and no more than a fine of $1,000.00. However, a person convicted of this charge must register as a sex offender. Subsequent offenses for this charge will carry enhanced penalties such as increased prison time and more considerable fines.
Distribution of Child Pornography
The crime of distributing child pornography in Florida is complete when the suspect knowingly disperses or distributes, advertises, directs, or produces imagery or video content depicting a minor engaging in sexual contact. Florida law defines the distribution of child pornography as a second-degree felony. A person convicted of a second-degree felony could spend fifteen years in a Florida penitentiary. The potential fine assessed by the judge could be as high as $10,000.00, and the offender could be required to register as a sex offender.
Manufacturing Child Pornography
This charge is a second-degree felony under Florida law. A person is guilty of manufacturing child pornography when the individual produces or directs pornography that depicts minors. The images could be still photos or video content. A person is also guilty of this charge if that individual solicits another to create child pornography. The maximum prison term allowed by law is fifteen years for a conviction of this charge.
Judges in Stuart, Florida, consider child pornography charges severe offenses. They will look to impose substantial prison sentences whenever possible. Under Florida’s sentencing scheme, the judges have the discretion to run prison sentences consecutively, meaning one after another. Thus, even if the maximum penalty for possession of child pornography is five years. The offender could receive five years for every photograph in his or her possession. Consequently, sentences imposed by the court could run for decades. It should be evident, therefore, that speaking with a Stuart child pornography defense attorney as soon as possible to obtain a comprehensive explanation of the charges and potential consequences.
Criminal Charges Commonly Filed Along with Child Pornography Charges
Prosecutors assigned to prosecute serious cases like child pornography cases have typically had a keen understanding of the criminal laws and procedures. They will use that knowledge to determine which charges are the strongest. They will also try to bring as many charges as they think the evidence could prove so that the accused does not get off “scot-free.” No prosecutor wants to be tagged with the dubious distinction of losing a child pornography case. The pressure and stakes are way too high. Therefore, the police and prosecutors could pile on as many charges as possible with the hope that at least one felony sticks.
Sometimes child pornography charges arise without any basis in fact or law for the prosecutor to seek additional charges. However, prosecuting attorneys bring child pornography charges along with other charges such as:
- Rape,
- Statutory rape,
- Sexual Battery of a minor,
- Lewd and Lascivious behavior with a minor,
- Fondling of a minor, and
- Other criminal acts associated with unlawful sexual contact with a child.
Minors cannot consent to sex under Florida law. The theory supporting the law states that children have no ability to consent. That means even if a minor, even one who is nearly an adult, cannot consent. Therefore, consent is not a defense to crimes like statutory rape, manufacturing child pornography, distribution of child pornography, or exhibiting pornography to a minor. Even though Florida law does not formally recognize consent as a defense to these charges, a knowledgeable, experienced, and skillful Florida criminal defense attorney could devise a compelling defense.
Sentencing and Collateral Concerns
Prison sentences for charges stemming from child pornography run from five to thirty years, and separate charges could run consecutively. Additionally, the sentencing judge could condemn a repeat offender to serve life in prison under Florida’s habitual criminal laws.
Other consequences could arise as well that a person charged with child pornography should talk about with his or her attorney. Collateral effects such as registration as a sex offender, paying fines, attending sex offender counseling, wearing a GPS or other electronic monitoring device, limited ability to reside with or near children, limited ability to work or volunteer in a position that would allow the convict to come in contact with a minor, and difficulty obtaining a residence due to the stigma of being a convicted sex offender.
Federal Crimes and Punishments Related to Child Pornography
Federal law enforcement authorities, like the FBI, for example, have concurrent jurisdiction over many of the acts that comprise criminal charges in the state of Florida. Using the internet or mailing child pornography, including utilizing a parcel shipping service, gives the federal law enforcement agencies jurisdiction to investigate and charge these crimes.
The federal criminal laws prohibiting possession of child pornography and individual acts relating to child pornography come with severe, even draconian, prison sentences. Any imagery depicting a child under the age of twelve, depicting the child engaged in masochistic, sadistic, or unnatural acts, could invoke enhanced penalties and require long prison sentences. Additionally, a person caught in possession of four or more child pornographic images, in possession of imagery depicting minors engaged with each other in sexual acts, and any photos showing a child under five could face enhanced criminal penalties, beginning with long prison sentences.
Successful Defenses to Child Pornography Charges in Stuart, Florida
Even though child pornography charges are notorious, even infamous, and highly offensive to the general public, the lack of popularity of the crime does not deprive the person facing those charges with an opportunity to defend against them. On the contrary, the U.S. and Florida constitutions require that people accused of charges relating to child pornography, just like every other criminal charge, has the right to a fair trial. The judge presiding over the case must ensure that the rulings he or she makes are consonant with giving the defendant a fair trial and not favoring the prosecution because most people have a visceral reaction to people accused of sexually victimizing children.
A seasoned child pornography defense lawyer appreciates the public outrage over such vile material but knows how to defend a case successfully despite the prevailing public opinion.
The facts and circumstances of the particular investigation will dictate the appropriateness of certain defenses. One defense might be applicable in one case but inapplicable in another because the situation is different. Common defenses to child pornography charges include:
Child Erotica
The child erotica defense is highly technical and could require expert testimony to explain to the jury the difference between pornography and erotica. The difference between the two is subtle. Erotica is not unlawful to possess. Child erotica can depict a naked child, even posed in a sexually suggestive manner. Erotica crosses the line and becomes pornography when the child is depicted while engaged in lewd and lascivious conduct or fully engaged in a sexual act.
Unwitting Possession
Possession is a technical legal term. Possession means to know the existence of an object while having actual control over the item, such as holding a pen or having constructive possession over the object. Having constructive possession over an object means that the person knows about the object while having the mental intent to exercise control over the object. However, the evidence could show that a person charged with possession of child pornography did not know the image was there. For example, a person could download a file from the internet and unwittingly download a photograph defined as child pornography because a person hacked the file and infected it with unlawful images. The prosecution could not sustain its burden of proving knowing possession if the person did so unwittingly.
Transitory Possession
The transitory possession defense is substantially similar to the unwitting possession defense. If a person comes across an image on a computer that is unlawful to possess because it is child pornography and the person deletes it immediately, the image might not be wiped from the computer memory. The image could be in a cache file or accidentally saved as a thumbnail. A person charged in that circumstance might be able to argue successfully that the person possessed the item for a short amount of time and had no intent to keep it.
Subjects Depicted in Images are Adults
The prosecution must prove that the person shown in the imagery satisfies the legal definition of a child. On many occasions, the average juror will be able to determine that the subject was not of legal age. It may not be so evident in other circumstances. In those cases, the best defense might be arguing that there is no proof of the age of the person depicted in the imagery.
Good Faith Reporting and Destruction
This defense has limited application. Only a person charged with possessing three or fewer images of suspected child pornography can claim that he or she destroyed the image while acting in good faith and then reported its existence to the authorities.
Unlawful Searches and Seizures
The actions of the police must fall within constitutional strictures. If the police fail to abide by the law, then the evidence seized from a violation of another’s rights will be thrown out of court and cannot be used at trial by the prosecution. Therefore, filing a motion to suppress all evidence seized is a valuable defense tactic. Subjecting the actions of law enforcement to judicial scrutiny could expose critical errors committed by the investigating officers and weaken the government’s case.
Most of the child pornography investigations conducted by police involve a search warrant. If the search warrant application and affidavit do not pass constitutional scrutiny, then all evidence seized under the authority of the warrant and all of the evidence stemming from the unlawful cannot be used at a trial against the accused. Consequently, a successful motion to suppress often results in a dismissal of all of the charges or a chance to plea bargain to reduced charges.
Teen Sexting: Crime or Kids Being Kids?
The proliferation and enhancement of smartphone technology advance at a much faster rate than the law can advance. Kids started sharing photos and videos of each other, engaging in sexual activity, otherwise known as sexting. Until a recent amendment to Florida law, the children could be prosecuted under Florida’s child pornography laws. Now that Florida law has finally caught up with the times, teens exploring their sexuality need not face criminal charges for sexting in most circumstances.
That is not to say that Florida law permits sexting. First-time offenders could avoid criminal prosecution by complying with diversionary requirements. However, failing to satisfy those requirements could force the government to resurrect the felony child pornography charges and prosecute the matter to the fullest legal extent.
A person who views an image deemed to be sexting could avoid prosecution by deleting it and reported the matter to a person of authority at home or in school. However, immunity is limited. If the person sent the image to others before deleting it, then the exception does not apply.
Protect Your Future with Help from the Experienced Musca Law Child Pornography Defense Lawyers
Musca Law’s Florida criminal defense attorneys fight tirelessly for the best result for their clients in every case. Call Musca Law any time today at (888) 484-5057 to discuss your legal issue. The telephone call and the initial consultation are free. Waiting to make the call could destroy your future and rob you of your liberty, so call now.