Lighthouse Point Child Pornography Attorney

Common child pornography charges in South Florida

All child pornography offenses carry serious legal consequences. Florida law addresses the commercial sexual exploitation of children from multiple angles through several different statutes. Some statutes are contained within the chapter of the state legal code that is dedicated to child pornography offenses. Other relevant laws overlap with Florida’s laws against human trafficking and other related offenses.

POSSESSION OF CHILD PORNOGRAPHY

Possession of child pornography is a similar offense under federal and state law. An individual may be charged under Florida law for possessing child pornography if he or she has within his or her control a visual depiction that includes anyone who is under 18 years of age engaging in sexual conduct. Defendants may be convicted for possession of child pornography if the state establishes that they had active or constructive possession of a visual sexual depiction of a minor.

Active possession is what comes to mind for most people when they imagine someone being caught with an illegal item. A defendant has active possession of child pornography if he or she:

• has the illegal material in a pocket on his or her clothing
• has the illegal material positioned on his or her body
• has the illegal material in a bag or other accessory the defendant is wearing or carrying
• has the illegal material within his or her reach

Constructive possession is more likely to be subjective in a court of law. Therefore, a defense attorney has more of an opportunity to challenge whether the defendant actually possessed the item in cases that involve constructive possession. A defendant generally has constructive possession if he or she:

• has illegal material stored in an assigned locker at work
• has illegal material stored in a desk drawer inside the defendant’s exclusive office space
• has illegal material stored in a personal closet at home
• has illegal material stored in an assigned storage unit

Today, child pornography is more likely to be stored digitally on a portable drive or on a digital device. Therefore, if the defendant has active or constructive possession of a storage drive that has a sexual image of a minor, he or she may be charged as if law enforcement found printed photos of minors engaging in sexual content. In fact, possessing child pornography in a digital medium can make it easier for charges to escalate.

PROMOTION OF CHILD PORNOGRAPHY

The promotion of child pornography is charged as an offense with a more serious penalty than possession of child pornography. Florida’s law against promoting child pornography was written broadly. As a result, prosecutors may charge defendants with promotion in cases that may appear to meet the definition of a lesser charge at first glance. An individual may be charged for promoting child pornography if he or she manufactures, sells, or transfers any image or video that depicts a minor engaging in sexual activity or that was modified or created to portray a minor engaging in sexual conduct.

There is no minimum threshold when it comes to how many images the prosecution has to prove the defendant transferred, manufactured, or sold to support a claim of promoting child pornography. Some examples of activities that meet the definition of promoting child pornography are:

• sending an email that contains one sexual image of a minor
• texting a video of a minor engaging in sexual conduct
• posting a link on social media to content that contains child pornography
• transferring a file that contains a sexual image of a minor to someone via a peer-to-peer file sharing site
• uploading child pornography to a website

State law allows courts to enhance the sentence if a defendant is convicted for promoting child pornography in some situations. Promotion of child pornography without aggravating factors is a second-degree felony. However, the offense is a first degree felony if:

• the sexual material depicts a child who is under the age of five
• the depiction contains sadomasochistic abuse
• the depiction shows sexual battery of a child
• the depiction involves bestiality
• the depiction is an actual or computer-generated motion picture, video, or film

Florida’s laws against promoting child pornography also contain a provision that surprises many people. If a defendant is in active or constructive possession of three or more copies of a sexual image or video of a minor, the court may automatically presume the defendant intended to promote child pornography. Therefore, what appears to be a basic possession charge can quickly escalate to a charge for promoting child pornography.

Our Lighthouse Point child pornography defense attorney has more than 35 years of experience in representing defendants in challenging criminal cases.

TRANSMISSION OF MATERIAL HARMFUL TO A MINOR

Individuals who share material a Florida court deems to be harmful to a minor may be convicted under state law. Florida’s statute against transmitting material that is harmful to minors does not specifically identify materials that are harmful to minors. State courts generally consider material that contains nudity or sexually explicit conduct to be harmful to minors. More specifically, the court weighs whether:

• the content primarily appeals to the prurient, shameful, or morbid interest
• whether the content is patently offensive
• whether the content is without artistic, literary, political, or scientific value

A defendant violates the statute against transmitting harmful materials to a minor if the defendant specifically transmits the content to someone the defendant knows is a minor. Posting the content for public view does not violate the statute even minors have access to the content. Transmitting harmful materials to a minor is a third-degree felony. If convicted, the defendant may be sentenced to up to five years in prison and ordered to pay a fine of up to $5,000.

USE OF A MINOR IN A SEXUAL PERFORMANCE

Florida’s statute against using a minor for a sexual performance targets two types of defendants. First, people who authorize, employ, or induce anyone who is under 18 years of age to participate in a sexual performance may be charged with use of a minor in a sexual performance. The second group that may be charged under the statute is parents, guardians, and custodians who give consent for a minor to participate in a sexual performance. The person who may be charged does not have to be a biological or legal parent as the law applies to any adult who was supervising the child at the time of the offense.

Under Florida law, use of a child in a sexual performance is a second-degree felony with a maximum penalty of 15 years in prison and a fine of up to $10,000. First-time offenders may be required to register as a sex offender in the state registry. Repeat offenders may be committed to a state hospital for an indefinite amount of time.

Florida’s sexting law and child pornography offenses

People are often surprised to learn that teen sexting cases are adjudicated in state court. However, Florida courts treat minors differently than they treat adult offenders.

SEXTING CASES BETWEEN MINORS

Florida’s courts treat juvenile offenders with more leniency toward teens who are implicated for texting another passenger who was in line at the airport waiting for security clearance. Minors who do not have a prior offense for texting may be ordered to pay a $60 fine, complete a course on the dangers of sexting, and complete eight hours of community service. Failure to complete the requirements may result in the minor’s driving license being suspended. Teens may also challenge the charge within a specified amount of time.

Second-time offenders may be accused of a misdemeanor offense. If convicted, the defendant may be sentenced to up to one year in prison.

SEXTING BETWEEN AN ADULT AND A MINOR

An adult who is a first-time offender of Florida’s sexting law may be sentenced under Florida’s child pornography statute. Examples of laws Florida prosecutors may leverage to charge the defendant in a child pornography case are:

• possession of child pornography
• promotion of child pornography
• online solicitation of a minor
• use of a minor in a sexual performance

Depending on the statute under which the prosecutor charges a defendant for a child pornography-related offense, the defendant may have to wait several months or more to receive a trial.

Accidentally accessing child pornography

You may be wondering what you can do if you accidentally access pornography. First, contact a Lighthouse Point Child Pornography defense lawyer. Next, report the pornography to law enforcement. Your attorney will also likely tell you to make a good faith effort to delete the illegal material from your device. Personal computers often make multiple copies of a file for access purposes, so be sure to search for extra copies and delete them if present. If your device downloaded illegal images of minors because you have a virus or other malware, consult tech support.

South Florida defense lawyer for child pornography charges

If you have been accused of a child pornography-related offense, your initial reaction may be one of panic. Instead of panicking, contact a trustworthy child pornography defense lawyer in Lighthouse Point FL. Joffe Law is a leading child pornography defense law firm in South Florida. Our team will handle your case with professionalism and discretion. A serious criminal charge requires serious representation. Call the talented team at Joffe Law to receive a case evaluation. We will advise you of your legal options.