Hollywood Child Pornography Lawyer

Hollywood FL possession of child pornography charge

Possession is a base level child pornography offense under state and federal law, and it is also typically a required element in more severe child pornography offenses. Under Florida state and federal law, an individual is in possession of child pornography if he or she has a visual sexual depiction of a minor in an area that is within the defendant’s control. Actual and constructive possession meet the definition of possession of child pornography under state and federal law.

Actual possession occurs when someone has an item directly on his or her physical person or in an area that is within physical reach. Examples of actual possession include:

• having an illegal item hidden on your body
• having an illegal item in a pocket or compartment in your clothing
• having an illegal item under the seat of your car while you are driving
• having an illegal item in a backpack or other accessory you are holding, wearing, or carrying

Constructive possession can either be very straightforward or highly subjective. An individual has constructive possession of an illegal item if he or she has the item in an area that is not within the individual’s immediate reach but is still under the individual’s control. Some examples of constructive possession include:

• having an illegal item locked in your desk at work
• having an illegal item in your bedroom closet at home
• having an illegal item in the trunk of your car
• having an illegal item in your private storage unit

CHALLENGING CONSTRUCTIVE POSSESSION IN FLORIDA CHILD PORNOGRAPHY CASES

There are often cases in which it is disputable whether a defendant had constructive possession of an illegal item. Within the context of child pornography cases, the prosecution may have more difficulty proving possession if the defendant did not have access to his or her computer at the time illegal material was downloaded or accessed. Proving possession may also be more difficult in cases in which child pornography is found on a computer that is available for public use and was unattended for the relevant period of time. Providing evidence that the defendant’s device was hacked and that someone else was able to download and access files on the device can also improve a defendant’s probability of winning his or her case.

Possession of child pornography is a third-degree felony offense. If convicted, a defendant may be sentenced to up to five years in prison and fined up to $5,000. In possession of child pornography cases, Florida prosecutors charge one count per image the defendant is accused of possessing. If investigators discover 100 child pornography depictions on a defendant’s device, a prosecutor may potentially be sentenced to up to 500 years in prison and fined up to $500,000 if convicted.

Promotion of child pornography

Florida’s law against the promotion of child pornography was written broadly enough to allow prosecutors to file charges in cases of all sizes. State law defines the promotion of child pornography as knowingly manufacturing, selling, or transferring any image or video that either depicts a minor engaging in sexual activity or has been modified to portray an identifiable minor engaging in any sexual conduct.

Florida law does not specify a number of sexual depictions of minors or a minimum audience size. Therefore, defendants may potentially be charged with promoting child pornography whether they send one direct message on social media that contains one sexual image of a minor or if they post a link to an audience of 10,000 people who may be redirected to a child pornography site if they click the link.

Promotion of child pornography is a second-degree felony under Florida law. If convicted, a defendant may be sentenced to up to 15 years in prison and ordered to pay a fine of up to $10,000. Florida’s child pornography possession law also includes a provision that allows defendants who are suspected of possessing three or more copies of a sexual image of a minor to be charged with promoting child pornography. Therefore, a first-degree felony possession case can very easily become a second-degree felony promotion case.

Transmission of materials harmful to minors

Transmission of Materials Harmful to Minors differs from other child pornography-related offenses in that defendants who are convicted of the crime do not have to register with the state’s sex offender registry. In some cases, prosecutors offer to lower the defendant’s charge to transmission of materials harmful to a minor if the defendant agrees to plead guilty to the lesser offense and avoid going to trial. Although the defendant is automatically convicted, he or she is not required to register as a sex offender under the terms of the plea deal. Defendants who are offered a plea deal should always consult a Florida child pornography defense attorney before accepting the deal.

If the defendant’s case is winnable in court, the defendant may be able to avoid criminal conviction altogether. The criminal justice system is designed for defense attorneys to bear the responsibility of advising defendants in criminal cases of the options that are in the defendant’s best interest. People who are accused of a child pornography crime in Florida should not assume a prosecutor will offer a deal that is most advantageous for the defense.

Florida law defines transmission of materials harmful to minors as electronically transmitting harmful materials to a person who is known or believed to be younger than 18 years of age. The statute does not specifically list materials that are inherently harmful to a minor, but the law is generally used to prosecute cases in which someone sends sexual material to a minor. Material that is harmful to a minor may be photographic or written. It depicts nudity or sexual content that primarily appeals to a prurient, shameful, or morbid interest that is patently offensive to prevailing standards in the adult community with respect to what is deemed appropriate for minors. The statute also states the material must be without political, scientific, artistic, or literary value to minors.

The prosecution must prove the defendant knew or believed the recipient of the material was a minor at the time of the offense. Moreover, the prosecution must establish that the defendant sent the material directly to the minor. Posting sexual materials in a setting in which a minor would have access to the materials does not meet the definition of transmission of materials harmful to a minor under state law. Similar to possession of child pornography, transmission of materials harmful to a minor is charged based on the amount of material the defendant transmitted to the victim. For example, if the defendant emailed five sexual photos to a minor recipient, the defendant may be charged with five counts of transmission of materials harmful to a minor. Transmitting materials harmful to a minor is a third-degree felony under state law. If convicted on a charge of transmission of materials harmful to a minor in Florida, the defendant may be sentenced to a maximum of five years in prison per count and fined up to $5,000 per count.

Use of a child in a sexual performance

Anyone who employs, entices, or authorizes a child to participate in a sexual performance may be convicted under Florida law for use of a child in a sexual performance. Parents, guardians, and custodians may also be charged with use of a child in a sexual performance if they give permission or consent to a child participating in a sexual performance. State courts do not apply a strict definition of the terms “custodian” and “guardian.” Therefore, someone who is supervising a child in an unofficial or temporary capacity may be convicted under the statute for use of a child in a sexual performance. The term “sexual performance” may refer to any image, video, play, or other visual representation that depicts a child engaging in sexual activity or lewd exhibition of the genitals.

Use of a child in a sexual performance is a second-degree felony under Florida law. If convicted, a defendant may be sentenced to up to 15 years in prison and ordered to pay a fine of up to $10,000.

Sexting and child pornography laws in Florida

Minors and adults who engage in sexting with a minor in Florida may be convicted under state and federal child pornography laws. At the state court level, cases that involve minors who are accused of sexting are most often prosecuted in Florida’s juvenile court system. Adults who are suspected of sexting with anyone who is younger than 18 years of age may be charged with a Florida child pornography offense. Adults who are charged for sexting with a minor may face any of the following charges:

• possession of child pornography
• use of a child in a sexual performance
• traveling to meet a minor
• transmission of materials harmful to a minor
• promotion of child pornography

If you have received a sexual text message from someone who is younger than 18, the best approach to protecting yourself is to contact the person’s parent or guardian. If you are an adult, a Florida child pornography defense attorney can also advise you regarding steps you can take if you are concerned that it may appear that you have committed a crime.

Let a Hollywood child pornography defense attorney go to work for you

Even if an accusation of a child pornography offense may seem baseless, you should always take it seriously. Contact our Hollywood FL child pornography defense if you have been identified in a potential child pornography case. A member of our team will evaluate your case and determine the next steps.