Child Pornography Defense Lawyer Hialeah
We specialize in defending state & federal sex crimes charges
Child pornography offenses are intensely investigated and aggressively prosecuted. If you have been accused of a child pornography offense, the people who are closest to you likely have a lot of questions. Your relationship with your employer may be strained. The good news is you don’t have to go through the experience alone. In fact, we recommend consulting a qualified Hialeah child pornography defense lawyer as early as possible. Getting a lawyer on the case early can equip you to protect your reputation and remove the cloud of suspicion from your name as quickly as possible. Joffe Law specializes in Florida child pornography cases. Contact our talented team of legal professionals if you have been accused of a child pornography offense in Hialeah.
Accused of a child pornography offense in Hialeah?
To some, it may seem far-fetched that someone can be accused of child pornography without lurking in dark corners of the Internet and viewing illegal images of small children. However, a false accusation can happen easier than people may realize. Some common situations that result in false child pornography accusations include:
- allowing someone else to borrow a laptop, and the other person views illegal images
- receiving a sexual text message from someone without knowing the other person is younger than 18
- accidentally downloading a computer virus that accesses and transmit child pornography
- being blackmailed by someone who spreads a false rumor
No matter where your false accusation came from, a Florida defense attorney can help. We represent individuals who have been falsely accused of a child pornography-related offense in Hialeah and surrounding areas.
State and federal child pornography offenses
Child pornography offenses can easily result in federal charges. Most child pornography in the United States is produced and transmitted through digital means. People who live in locations across the country and even in other countries gather in online spaces to buy, sell, and trade sexual images of minors. A defendant is likely to face a federal child pornography if:
- the case involves an element that takes place in interstate or international commerce
- the case involves an element that takes place in a U.S. territory
- the case involves federal government property
- the case involves a federal government agency
- the case involves a federal government employee or official
Federal courts tend to have very broad interpretations of whether a child pornography case occurs in the stream of interstate or international commerce. For example, if someone downloads child pornography onto a device that was made in Japan, a federal court is likely to determine that the case involves activity that occurs in the stream of international commerce. Individuals who are charged in both state and federal court may potentially be convicted in both court systems and sentenced up to the maximum for each offense by each court system. Therefore, the penalties can add up very quickly.
Do not say anything that might incriminate you. Speak with an attorney first.
Possession of child pornography
Florida law and federal law define child pornography similarly. An individual is in possession of child pornography if he or she has a visual depiction that includes a sexual image of a minor in an area that is within the individual’s control. Federal and state law acknowledge actual and constructive possession.
Actual possession occurs when an individual has an item on his or her person or within reach. Examples of actual possession include:
- having the item hidden on his or her body
- having the item in a pocket or other compartment in his or her clothing
- having the item in a backpack, handbag, or other accessory the individual is holding, wearing, or carrying
- having the item under the driver’s seat while driving in a car.
Constructive possession refers to situations in which the item is located somewhere that is far away from the defendant but is still under the defendant’s control. Examples of constructive possession include:
- having the illegal item in your locker at work
- having the illegal item in your storage unit
- having the illegal item in the trunk of your car
- having the illegal item in your bedroom closet at home
Cases in which a prosecutor must prove constructive possession in a common space are often more difficult. For example, a prosecutor may struggle to prove a defendant had constructive possession of child pornography that was found on a publicly accessible computer that was left unattended at a library for an extended period of time. If the defendant’s attorney can prove the defendant was not accessing the computer when the illegal materials were downloaded or accessed, the defendant is much less likely to be convicted.
Possession of child pornography is a third-degree felony charge under Florida law. If convicted, the defendant may be sentenced to a maximum of five years in prison and a fine of up to $5,000. Prosecutors charge one count of possession of child pornography for each sexual image of a minor the defendant is accused of possessing. If convicted, the defendant may be sentenced up to the maximum penalty multiplied by the number of charges on which the defendant is convicted.
Promotion of child pornography
Florida’s law against promoting child pornography was written broadly enough to allow state prosecutors to charge people whether they transmit one image or display ten thousand images. State law defines promotion of child pornography as the manufacture, sale, or transfer of any image or video that either depicts a minor engaging in sexual activity or was created to or modified to portray an identifiable minor engaging in sexual activity. The statute does not specify a minimum threshold of images or videos the prosecution must prove the defendant manufactured, sold, or transferred.
A surprising feature in Florida’s laws against promoting and possessing child pornography is a provision that allows state courts to presume the intent to promote child pornography if the defendant has more than three copies of a visual depiction of a minor engaging in sexual activity. Therefore, a third-degree felony charge can easily become a second-degree felony.
Promotion of child pornography is a second-degree felony offense. If convicted, the defendant may be sentenced to up to 15 years in prison and ordered to pay a fine of up to $10,000.
Transmission of materials harmful to a minor
Under Florida law, a defendant may be charged with transmission of materials harmful to a minor if he or she uses electronic means to send sexual materials to a minor. The statute does not list specific types of materials that are inherently harmful to minors. However, according to the law, material is harmful to minors if:
- the content primarily appeals to the prurient, shameful, or morbid interest
- the content is patently offensive
- the content is without scientific, literary, political, or artistic value
State prosecutors must prove the defendant knowingly and specifically transmitted the materials to someone the defendant knew to be a minor. Posting the materials publicly in an area in which minors may be able to access the materials does not meet the definition of transmitting materials harmful to minors.
Transmission of materials harmful to minors is a third-degree felony offense. If convicted, the defendant may be sentenced to a maximum of five years in prison and a fine of up to $5,000. Unlike most other sex offenses, transmission of materials harmful to minors does not require convicted defendants to register as sex offenders in the state sex offender registry.
Use of a child in a sexual performance
A defendant who authorizes, employs, or provides a minor for participation in a sexual performance may be convicted on a charge of use of a child in a sexual performance. Parents, guardians, and custodians may also be charged under the same statute if they give permission for a child who is in their care to participate in a sexual performance. State law defines a sexual performance as any image, play, video, or other visual representation that depicts a child engaging in sexual intercourse, anal sex, oral sex, masturbation, bestiality, or lewd display of the genitals. Florida courts do not require custodians and guardians to have a familial or official guardianship or custodianship over the child. Therefore, someone who is watching a child in a temporary or informal capacity may be charged and convicted under the statute if they consent to the child participating in a sexual performance.
Use of a child in a sexual performance is a second-degree felony. If convicted, the defendant may be sentenced to up to 15 years in prison and ordered to pay a fine of up to $10,000.
Sex offender registry requirement
Most child pornography offenses require convicted defendants to register as a state level sex offender. Sex offender registration places certain restrictions on people’s movements if they have been convicted of a sex crime in Florida. The federal government also has a federal sex offender registry for people who are convicted for federal state crimes. Some examples of sex offender limitations include:
- restriction from working in occupations that involve children
- restriction from residing within 1,000 feet of playgrounds, daycare centers, and parks
- restriction from having contact with children
- restriction from visiting Disney parks
- restriction from moving out of state without first meeting certain requirements
Additionally, sex offenders are required to maintain their current address, employment information, email address, and other personal details up to date on file. Convicted sex offenders are required to register within 48 hours of release from completing a sentence in prison.
In some cases, a prosecutor may offer a plea deal that does not require sex offender registration. For example, the state may offer a deal that requires the defendant to plead guilty for transmission of materials harmful to a minor in exchange for not going to trial for an offense that does require sex offender registration. However, we caution every criminal defendant to always consult a credible child pornography defense lawyer before accepting any plea deal. Your Florida defense lawyer may be able to negotiate a deal that is more favorable for you or beat the charge altogether at trial.
Florida sexting laws and child pornography
Sexting that occurs between two overtly consenting adults is typically completely legal in Florida. However, if the exchange involves one or more minors, sexting becomes illegal. Florida courts handle sexting cases in which all parties are minors very differently than cases in which one party is an adult and the other is a minor.
SEXTING CONVICTION FOR MINORS
Cases that involve minors who exchange sexual depictions via text message are generally adjudicated in the state’s juvenile court system. First-time minor offenders are generally required to complete eight hours of community service, pay a fine of up to $60, and complete a course on the dangers of sexting. The minor defendant may file a petition to challenge the charge within 60 days, or he or she must complete the court’s requirements within the same time period.
Minors who have one prior charge for sexting may be charged with a third-degree misdemeanor, which has a maximum sentence of up to one year in jail and a fine of up to $1,000. A minor who has two prior sexting charges may be charged with a third-degree felony, which carries a maximum sentence of up to five years in prison and a fine of up to $5,000.
SEXTING CHARGES FOR ADULTS IN FLORIDA
Adults who are accused of sexting with a minor will generally be charged under the state’s child pornography laws. Common offenses prosecutors use to charge adult defendants in cases that involve sexting with a minor include:
- possession of child pornography
- use of a child in a sexual performance
- transmission of materials harmful to a minor
- promoting child pornography
Defense lawyer for Hialeah child pornography cases
Don’t leave matters in the hands of a less experienced Florida defense attorney. Call David Joffe if you are in need of a reputable Hialeah child pornography defense attorney who has a proven track record in state and federal cases. Contact our team today to request a case evaluation.