Child Porn Defense Lawyer Fontainebleau

An individual may be convicted for possessing child pornography if he or she has within his or her control a visual depiction that includes a minor engaging in sexual activity. Florida law recognizes actual and constructive possession. Actual possession occurs when a defendant physically has the illegal item on his or her person. The item may be on the defendant’s body, in a pocket on the defendant’s clothes, or in an accessory the defendant is wearing or holding. Actual possession also refers to items that are within the defendant’s physical reach.

Constructive possession can be more challenging for prosecutors to prove. A defendant has constructive possession of an item if the item is in an area that is within the defendant’s control. The area does not have to be immediately accessible to the defendant. Examples of constructive possession include:

• storing the illegal item in your assigned storage unit
• storing the illegal item in your desk drawer at work
• storing the illegal item in your private bedroom closet
• storing the illegal item in the trunk of your personal car

Proving constructive possession is more challenging in shared spaces. For example, it is generally more difficult to prove possession if the police find child pornography in the trunk of a company car that is shared by multiple employees. Constructive possession is also difficult to prove if the illegal material is found in a common area of a household the defendant shares with roommates or on public computers.

AGGRAVATED POSSESSION OF CHILD PORNOGRAPHY

A defendant may be convicted for Aggravated Possession of Child Pornography if he or she or she possesses 10 or more sexual depictions of a minor and at least one of the images contains any of the following:

• a child who is under 5 years of age
• sadomasochistic abuse that involves a child
• sexual battery that involves a child
• sexual bestiality that involves a child
• any movie that involves a child without regard to the length of the movie and whether the movie has sound

Aggravated possession is a derivative offense that is based on a minimum quantity of 10 counts of possession plus at least one additional aggravating factor. Defendants may be charged with both possession and aggravated possession simultaneously.

Receiving child pornography

Federal law also makes it illegal to receive child pornography. Receiving child pornography can happen involuntarily in surprising ways. The simple act of opening and clicking a link inside of an email from an unknown recipient or allowing someone else to use your device can result in you being investigated by law enforcement for child pornography.

Most people who use the internet and have an email account receive thousands of unsolicited email messages each year. Junk email often contains messages that have malware and viruses attached. When someone opens an email that contains a virus or malware, the program typically downloads unwanted files onto the recipient’s device. The files sometimes contain pornography. If a virus or malware file downloads a sexual image that contains someone who is under 18 years old, the recipient may be charged under federal law for receiving and possessing child pornography. If the malware transmits the image to someone else’s device when the individual sends an email or transfers a file, the individual may be charged with transmitting or promoting child pornography. Other examples of situations that can lead to an accusation of receiving child pornography include:

• allowing someone else to borrow your laptop or tablet
• downloading a file from a file-sharing network that has a sexual image of a minor
• receiving an unsolicited text message that contains child pornography

Fortunately, there are ways defense attorneys can disprove a charge of receiving child pornography. If someone else was using your device, your Florida child pornography defense lawyer may submit evidence of a conversation in which you agreed to allow someone else to borrow your device. Downloaded files generally have timestamps. Your attorney may provide evidence that proves the illegal file was downloaded to your work computer during a time when you were out of the office, at a meeting, or otherwise leaving your computer unattended. If a virus or malware downloaded child pornography onto your device, proving that you made a good faith effort to delete the image and report the material to law enforcement presents a strong case in your favor that suggests you had no intent to receive child pornography.

The best defense for you will depend on the facts of your case. Your attorney will know the best strategy to fight back against a state or federal child pornography charge.

Promoting child pornography

Florida law defines promoting child pornography as the manufacture, sale, or transfer of any image or video that depicts a minor engaging in sexual activity. Images and videos that are created or modified to depict a minor engaging in sexual conduct are also covered by the statute. The term “identifiable” means it must be confirmable that the person in the image or video was a minor at the time the depiction was created and that the person is recognizable as an actual person by his or her face, likeness, or another distinguishing characteristic. However, the term “identifiable” does not require actual proof of the minor’s identity.

The state law against promoting child pornography was written broadly. A defendant may be convicted for promoting child pornography whether he or she transfers one image or 10,000 images. A defendant may be convicted for sending an email that contains a sexual image of a minor. Posting a link on social media that directs viewers to a sexual image of a minor may also be charged as promoting child pornography.

Florida’s child pornography possession law contains a provision that allows a possession charge to be elevated to a charge of promoting child pornography. If a defendant has three or more copies of a sexual depiction of a minor, a state court may presume the defendant had an intent to promote child pornography.

Transmission of material harmful to a minor

Not only is it illegal in Florida to transmit sexual depictions of people who are younger than 18, but state law also prohibits the act of transmitting materials that are harmful to minors. The statute does not specify a list of materials that are harmful to minors, but the law is generally used to prosecute individuals who transmit sexual materials to people who are younger than 18.

The statute generally defines material that is harmful to minors as any form of content, whether photographic or written, that 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 suitable material for minors. In determining whether material is harmful to minors, the court also weighs whether the material has significant scientific, artistic, literary, or political value for minors. To date, the law refers to messages that are sent by email and instant messaging.

Use of a child in a sexual performance

Authorizing, employing, or inducing a child to engage in a sexual performance is a serious felony offense under Florida law. The law generally refers to anyone without regard to the person’s relationship to the child. However, parents, guardians, and custodians may be convicted under the same law if they give permission for a child to engage in a sexual performance.

Florida law does not require guardians and custodians to have a legal or official responsibility to care for the child. Therefore, people who are only temporarily supervising the child may be convicted under the statute. To establish a charge of Use of a Child in a Sexual Performance, the prosecution must prove:

• the defendant employed, authorized, or induced a child to engage in a sexual performance, or the defendant is a parent, guardian, or custodian of the child and consented to the child’s participation in a sexual performance
• the defendant knew the character and content of the performance
• at the time of the performance, the child was under 18 years old

A sexual performance can be an image, video, play, or other visual representation of a minor engaging in sexual activity. The statute recognizes an exception for all situations in which a mother is breastfeeding her child.

Mandatory minimum sentences in child pornography cases

Mandatory minimum sentencing guidelines apply to federal and state child pornography cases. Under Florida law, a defendant who is convicted on four or more counts of possession of child pornography must be sentenced to a minimum of 12 months in prison according to state mandatory minimum sentencing guidelines. For each additional count of possession, sentencing guidelines require courts to add four months per count to the original mandatory minimum sentence. Defendants who are convicted for possessing child pornography can be sentenced to a maximum of five years in state prison per count.

Aggravated Possession of Child Pornography also carries a mandatory minimum sentence under state law. If convicted, a defendant must be sentenced to a minimum of 41 months in prison; however, the defendant may be sentenced to a maximum of 15 years in prison, 15 years on probation, and a fine of up to $10,000 per count.

Compared to Florida’s child pornography statutes, more federal child pornography offenses carry mandatory minimum sentences. The mandatory minimum sentence for federal child pornography offenses also varies depending on the offense. Transporting child pornography carries a mandatory minimum sentence of five years in federal prison. The mandatory minimum sentence is 15 years for producing child pornography if the defendant is a first-time offender. A federal charge of Possession of Child Pornography carries a mandatory minimum sentence of 10 years if the defendant has a prior conviction for a related offense.

Fontainebleau child pornography defense lawyer

Joffe Law is a leading child pornography defense law firm in South Florida. If you are facing a federal or state child pornography charge in Fontainebleau or a nearby community, contact us. A member of our team will review your case.