Child Pornography Crimes committed in Florida

Attorney’s Guide to Child Pornography Crimes committed in Florida

What is child pornography?

Florida Law defines of “child pornography” as any image posted on websites or downloaded from the web that depicts children who are less than 18 years old engaged in sexual activities. Child pornography, also known as “child porn” or “kiddie porn,” can also be defined as any representation of an individual who is younger than 18 and engaged in sexual activity.

What are child pornography laws in the State of Florida?

Florida law provides a wide range of statutes prohibiting actions involving child pornography which are contained in two different chapters: Ch. 827 F.S., and Ch. 847 F.S. These laws are discussed further in the next paragraphs.

Florida Statute § 827.071(b) and § 847.001(3)  defines child pornography as either images depicting a minor engaged in sexual conduct, or images that have been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct. 

The Florida Statute § 847.001(19) defines “sexual conduct” to mean “sexual behavior” which can either refer to:

• Deviate sexual intercourse; (any oral or genital touching)
• actual sexual intercourse;
• actual lewd exhibition of the genitals;
• simulated sexual intercourse;
• sadomasochistic abuse;
• sexual bestiality;
• masturbation;
• actual physical contact with a person’s unclothed or clothed genitals, buttocks, pubic area, or, if such person is a female, breast with the intent to gratify or arouse the sexual desire of either party; or
• any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Florida Statute § 847.001(19) also exempts breastfeeding by a mother’s baby from being a “sexual behavior.”

Florida law distinguishes between “child pornography,” which is illegal, and “child sexual activity,” which is not considered illegal.

Is child pornography a federal crime?

While the State of Florida has its own set of statutes prohibiting child pornography, criminals involving child pornography are also prosecutable under federal law. 

Child pornography is defined in Federal law, under 18 U.S.C. § 2256(1) and (8), as the graphic representation of a person who is younger than 18 old engaging in sexually explicit behavior.

Illegal contraband could include any images of children engaged in any behavior deemed “sexually explicit.”

“Sexually explicit” or “sexually explicit” doesn’t require the picture to depict the child in sexual activities; however, it could include photos of a naked child if it’s sufficiently sexually suggestive. The representation of the image could consist of the following:

• photographs;
• videotape;
• video;
• videos or pictures taken from a site or via the internet
• undeveloped film or tape;
• information stored electronically that could be converted into visual images or
• images saved on computers or an electronic forum.

According to federal laws on child pornography, producing, receiving, distributing, or possessing any child pornography that impacts commerce between states or internationally is unlawful.

The federal authority in the prosecution of child pornography could occur when the visual image is transported across state lines, or the image was made using equipment or other materials that were transported across state lines, including:

• 18 U.S.C. § 2251 The Sexual Exploitation of Children (Production of pornographic material for children);
• 18 U.S.C. § 2252 Certain activities related to materials that involve sexual exploitation of minors (Possession distribution, distribution, and the receipt of pornographic material involving children);
• 18 U.S.C. § 2252A- specific actions relating to content that contains or is made up of child pornography;
• 18 U.S.C. § 2260- The production of sexually explicit representations of minors for export to the United States.

The federal element of jurisdictional child pornography laws is satisfied when pornographic images are transmitted electronically via a computer connected via the internet, e-mail, or mail. Due to their nature, electronic communication, the majority, if not all of these communications, could be subject to federal authority.

Is every photo depicting a nude minor child pornography?

No. For example, a mother photographing her child bathing is not sexual.

“Child erotica” is also exempt from child pornography statutes. “Child erotica” is when children are photographed in a way that does not conform to what is considered sexual behavior, regardless of whether the photograph is of a nude posture.

Is possession of child pornography a felony?

Yes, child pornography crimes in Florida are considered felonies and carry with it severe repercussions. Different situations and elements could increase the severity of the imposable penalty.

Florida laws prohibiting possession of child pornography materials

Florida statutes prohibit possessing photographs containing sexual content by a child.

• Florida Statute § 827.071(4) constitutes a level 5 offense, which is a second-degree felony to possess with the intent to market any photographic material, motion pictures, images, etc., that includes sexual activity by a child.
• Florida Statute § 827.071(5) constitutes a level 6 crime that is a third-degree criminal offense to possess any motion pictures or other. That includes sexual activity by an infant.
• Florida Statute § 827.071(2) (2) and (3) can be described as a level 6 offense, which makes it a second-degree crime to engage or incite the child to participate in a sexual act or to promote or control the performance.

If convicted of these offenses and the court grants probation, the defendant is sent to “Sex Offenders Probation.” This court is required to set specific conditions as specified in Florida Statute § 948.03(5)(b) and the other unique and standard conditions imposed.

Sex Offender Probation is designed to protect the community and demand counsel and treatment for the offender.

The offender must also submit two samples from blood samples to the Florida Department of Law Enforcement to be registered in the D.N.A. data bank.

What happens if I share child pornographic material to others?

Making, distributing, possessing, and making of child pornography is a third-degree felony in the State of Florida.

A third-degree felony is punishable by a maximum of 5 years in Florida State Prison. This includes the charge of watching or downloading any child pornographic image.

Sharing the photo with a third party can raise your risk of being charged with a second-degree felony that is punishable with a maximum of 15 years imprisonment at Florida State Prison.

Promoting or distributing the image of a child pornographic subject is liable to the severest penalties. It could be considered first-degree felonies that can be punished with a maximum of 30 years imprisonment in Florida State Prison for each charge. The crime is punishable by a minimum jail sentence of 5-13 years at Florida State Prison.

What are my charges if I have several child pornography materials in my possession?  

Each photo can be considered a distinct crime. The variety of criminal offenses or charges could increase the severity of penalties.

Prosecutors claim that every image requires time and effort to obtain and indicates the involvement and interest of the accused.

But, when images are downloaded via the internet, it’s possible to download hundreds or even thousands of photos at once, which reduces the chance that the sheer number of images indicates the need for more severe punishment.

Computer Pornography in Florida

The time limit for computer pornography-related crimes within Florida can be three years from when the offense is considered a third-degree crime in accordance with Florida Statute § 847.0135(2). The crime of computer pornography requires evidence that proves the following:

• (2)(a) someone who knows how to compile an entry into transfers via the using a computer;
• (2)(b) creates, prints, and publishes or copies through any other method that is computerized;
• (2)(c) willfully permits or causes to be entered into or transmitted through computer use;
• (2)(d) or purchases, sells, receives, or exchanges any statement, notice, or advertisement containing a minor’s name, phone number, residence physical characteristics, or other identifying or descriptive information to facilitate, encourage, or promote sexual behavior of children or the visual depiction of sexual conduct.

What to do if I am charged with child pornography crimes in Florida?

If you’ve been charged with a child pornography crime under federal or state law and are facing criminal charges, then call a defense lawyer, such as Leppard Law: Florida Criminal Defense Attorneys, to discuss your case. You can reach us at (407) 476-4111 to arrange a free case consultation.

Once the investigation has begun, Do not speak to any law enforcement official or other individual regarding the accusations until you’ve talked with and engaged an experienced criminal defense attorney.

You can assert these rights simply by saying, “I assert my rights under the Fifth and Sixth Amendments. I will not speak until I have my attorney present.” You can provide the officer with your address, name, and birth date on request, but you should not answer other questions.

In most cases, the first clue that a criminal investigation has begun of child pornography occurs when police personnel enters the home or office with a search warrant to take computers and other evidence.

If your business or home was recently included in a search warrant, contact an experienced criminal attorney immediately.

Everyone, even innocent ones, should assert their right to remain silent. Your criminal defense lawyer is the best person to provide perspective on the facts and evidence to the prosecutor as well as the police officers that are conducting the investigation.

In most of these instances, the prosecutor will have an easier time pursuing the case when you have made any statement.

Defending Against Child Pornography Crimes Charges in Florida

Being charged with a child pornography crime is a serious allegation. Defense against such charges typically falls under a few key categories:

• Motion to Suppress: This is a formal, written request to a judge asking them to exclude certain evidence from consideration by the jury. This motion is used when there is reason to believe that the evidence was unlawfully obtained, like through an unlawful search or seizure.
• Alibi Defense: An alibi defense is one in which the defendant attempts to prove that they were somewhere else at the time the alleged crime took place. This defense requires substantial proof such as witness testimonies, surveillance footage, etc.
• Entrapment: This defense applies when law enforcement officers induced or encouraged the defendant to commit a crime that they would not have committed otherwise.

Leppard Law can utilize these defenses and others to fight for a reduction or dismissal of your charges.

Frequently Asked Questions

1. What factors affect the severity of the penalty in a criminal case?

Several factors come into play, including the nature and severity of the crime, the harm caused to the victim, the defendant’s criminal history, and whether the defendant shows remorse. Sometimes, certain mitigating or aggravating circumstances may also affect the penalty.

2. Can penalties be reduced in a criminal case?

Yes, penalties can sometimes be reduced if a plea deal is reached or if the judge decides to grant leniency based on certain factors. However, this largely depends on the specifics of the case and the jurisdiction’s laws.

3. What is the difference between a fine and probation?

A fine is a monetary penalty paid to the court, while probation is a period of supervised release in the community instead of serving time in prison. Probation usually comes with certain conditions like regular check-ins with a probation officer, drug testing, or community service.

4. Are there long-term consequences to a criminal conviction beyond the immediate penalties?

Yes, a criminal conviction can have far-reaching consequences beyond the immediate fines or imprisonment. It can affect your ability to find employment, secure housing, or even travel overseas. In some cases, a felony conviction can result in losing the right to vote or own a firearm.

5. Can I appeal a penalty if I think it’s too harsh?

Yes, defendants have the right to appeal their sentences if they believe they’ve been unjustly sentenced. However, the appeals process can be complex and time-consuming, so it’s usually advised to have legal counsel to navigate it effectively.

6. What is the difference between consecutive and concurrent sentences?

If a defendant is convicted of multiple offenses, they may receive either consecutive or concurrent sentences. Consecutive sentences are served one after the other, while concurrent sentences are served at the same time. For example, two ten-year concurrent sentences would be completed in ten years, but two ten-year consecutive sentences would take twenty years to complete.

7. What is a suspended sentence?

A suspended sentence is a type of sentence where the offender is not required to serve jail time immediately but will have to serve it if they violate certain conditions or commit another crime during a probationary period.

How can Leppard Law assist me?

Leppard Law Criminal Defense Attorneys understand that these charges can devastate your life. They provide aggressive advocacy and can often reveal mistakes that occurred during the search or arrest.

If you’ve been accused of child pornography crimes in Florida, contact Leppard Law Criminal Defense Attorneys in Orlando at (407) 476-4111 for a free case consultation. Contact us today!