Miami Gardens Child Pornography Lawyer
Potent defense against sex crimes when you need it most
Child pornography cases are intensely investigated and prosecuted. Even if someone is falsely accused of a child pornography offense, the investigation can still disrupt the accused party’s professional and personal life. Nevertheless, people come to be wrongly accused of child pornography in ways that don’t necessarily involve hiding in dark rooms and viewing illegal images of small children. If you are facing a Miami Gardens child pornography charge, consult a Florida child pornography defense lawyer prior to communicating with law enforcement. A law enforcement agency may request an interview with you before you have been arrested or charged. Having an attorney present during the interview can help you avoid drawing additional suspicion to yourself. Joffe Law is Florida’s trusted child pornography defense law firm. Call us when you need a seasoned legal expert on your case.
Accused of a child pornography offense in Miami Gardens
Florida law and federal law define child pornography as a visual depiction that includes a person who is under the age of 18 engaging in sexual activity. A false child pornography accusation can happen even if the individual did not intend to view a depiction of an underage person. False child pornography charges can arise from the following situations:
- someone unintentionally receives a sexual text message from another person who is under 18
- one party spreads a malicious about another party
- a computer virus downloads an illegal depiction of a minor
- someone allows a friend, family member, or coworker to borrow his or her computer or other device and the other party accesses child pornography
Even if your case does not fit any of the aforementioned examples, a Miami Gardens child pornography defense lawyer may be able to help. Contact Joffe Law to learn how we can potentially protect your reputation and help you clear your name against very serious charges.
State and federal child pornography charges
Although child pornography charges can be state or federal offenses, the manner in which most child pornography is created and transmitted often makes child pornography cases federal offenses. Generally, a defendant may be charged with a federal offense if his or her case involves:
- an element that occurs within the stream of international or interstate commerce
- an element that occurs on federal government property
- an element that occurs in a U.S. territory
- the involvement of a federal government employee
- the involvement of a federal agency
Defendants who are charged in state and federal court may be required to prepare for two separate trials–one in each venue. If a defendant is convicted on both federal and state charges, the defendant will be sentenced within each court system. Federal courts apply a very generous interpretation when determining whether a child pornography case is within the federal government’s jurisdiction. For example, if someone uses a laptop that was manufactured in South Korea to transmit sexual images of a minor, a federal court will likely find that the case is within the federal government’s jurisdiction because the laptop was constructed within the stream of international commerce. Your Miami Gardens defense lawyer can help you understand the matter of jurisdiction and whether the federal government has rightly charged you with a federal offense.
Do not say anything that might incriminate you. Speak with an attorney first.
Possession of child pornography
An individual possesses child pornography if he or she has a visual depiction that includes a minor engaging in sexual activity in an area that is within his or her control. Federal and state law recognize actual and constructive possession. Cases that involve actual possession are generally easier for the prosecution to prove although there are some challenges a defense attorney may raise against a possession charge. Some examples of actual possession are:
- having illegal materials on a smartphone you keep in your pocket
- holding a flash drive that contains illegal images
- stashing an external storage drive that contains child pornography files under the seat of your car while you are driving
- having illegal images of minors on a laptop that is inside of a backpack that is on your back
Constructive possession can be more difficult to prove. However, there are some cases in which constructive possession is more apparent. A defendant has constructive possession of illegal materials if the materials are in an area that may not be directly next to or touching the defendant, but the defendant still exercises control over the area. Some apparent examples of constructive possession include:
- storing child pornography images on a laptop that is in your desk at work
- keeping an external hard drive that contains child pornography in your private storage unit
- having sexual images of a minor on a digital camera you keep in your bedroom closet at home
- distributing child pornography out of your locker at work
Prosecutors are likely to find it more challenging to prove constructive possession if the illegal images were found in communal spaces like common storage areas in office spaces or on computers that are unmonitored and available for public use. Your Florida child pornography defense lawyer will evaluate your case and determine the best approach to disproving the false charges against you.
PENALTIES FOR POSSESSION OF CHILD PORNOGRAPHY
Prosecutors charge individuals for possession based on the number of illegal depictions of a minor the defendant is suspected of having. For example, if an individual has 300 sexual images of minors, the defendant will likely be charged with 300 counts of possession of child pornography. If a defendant is convicted on 300 counts of possession of child pornography, the court may sentence the defendant up to the maximum multiplied by the total number of counts. Possession of child pornography is a third-degree felony, which has a maximum sentence of up to five years in prison and a fine of up to $5,000.
Promotion of child pornography
Florida’s law against promoting child pornography does not specify a minimum threshold of activity that constitutes promoting child pornography. For example, a defendant who sends one email that contains child pornography may be convicted for promoting child pornography. A defendant who posts a link to child pornography on a social media platform with an audience of millions may also be charged with promotion of child pornography. State law defines promotion of child pornography as the manufacture, sale, or transfer of any image or video that depicts a minor engaging in sexual activity.
A unique feature in Florida’s law against promoting child pornography is a provision that allows a state court to automatically presume the intent to promote child pornography if the defendant was in possession of three or more copies of a sexual depiction of a minor. Therefore, what may seem like a third-degree felony can easily become a second-degree felony with a maximum sentence of 15 years in prison and a fine of up to $10,000. Many devices automatically create additional copies of images for ease of access or when the device user views the image multiple times.
Transmission of materials harmful to minors
In addition to prohibiting the viewing of child pornography, Florida law also prohibits the transmission of materials that are harmful to minors. Although the statute does not list types of materials that are inherently harmful to minors, the law is typically used to prosecute individuals who use electronic means to transmit a sexual depiction to a minor. According to the statute, material is harmful to a minor if:
- the content primarily appeals to the prurient, shameful, or morbid interest
- the content is patently offensive
- the content is without literary, artistic, political, or scientific value
To establish a charge of transmission of materials harmful to minors, the prosecution must prove the defendant transmitted the material to a specific person the defendant knew to be a minor. Posting the material for public view in an area that can be accessed by a minor does not meet the definition of transmitting materials harmful to minors under Florida law.
Transmission of materials harmful to minors 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. Unlike other sex offenses, transmission of materials harmful to minors does not require convicted defendants to register as a state level sex offender. Prosecutors may offer transmission of materials harmful to minors in a plea deal as a lesser offense that does not require registry as a sex offender.
Use of a child in a sexual performance
Anyone who authorizes, employs, or supplies a minor for participation in a sexual performance can be convicted for use of a child in a sexual performance. Parents, guardians, and custodians may also be convicted if they give permission for a minor to participate in a sexual performance. Florida courts do not require the guardian or custodian to have a familial or official relationship with the child. Someone who is supervising the child temporarily or in an unofficial capacity may also be convicted for consenting to the child participating in a sexual performance.
Florida’s sexting laws and child pornography
When people exchange sexual text messages, they usually don’t imagine themselves going to prison. Sexting is legal in Florida if both parties are overtly consenting adults. However, if at least one party is a minor, sexting is a crime. Florida courts handle sexing cases that involve two minors very differently than the way they handle cases in which one of the parties is an adult.
SEXTING BETWEEN MINORS
Most cases that involve sexting between minors are handled by the state’s juvenile court system. Minors who have no prior charges for sexting may be required by the court to complete a course on the dangers of sexting, do eight hours of community service, and pay a fine of up to $60. The minor must either appeal the sentence or complete the requirements within a specified amount of time. Failure to complete the requirements may result in the state suspending the minor’s driver’s license.
Minors who have one previous charge for sexting may be charged with a first-degree misdemeanor. If convicted, the minor may be sentenced to up to one year in jail and ordered to pay a fine of up to $1,000. Third-time minor offenders of Florida’s sexting law may be charged with a third-degree felony offense. If convicted, the minor may be sentenced to up to five years in prison and ordered to pay a fine of up to $5,000.
SEXTING BETWEEN ADULTS AND MINORs
Adults who violate Florida’s sexting laws may be prosecuted under the state’s child pornography laws. Some common statutes adults violate if they exchange sexual text messages with a minor include:
- Transmission of Materials Harmful to Minors
- Possession of Child Pornography
- Use of a Child in a Sexual Performance
- Promotion of Child Pornography
- Traveling to Meet a Minor
Florida parents should communicate frequently and openly about the legal and personal dangers that are involved with sexting. Adults should always verify the other party’s age from multiple sources if possible before deciding to engage in sexting with the person. Anyone who receives an unsolicited sexual image of a minor should immediately delete the image and notify the minor’s parents, another trusted adult such as a school principal, counselor, or teacher, or, if necessary, the police.
Miami Gardens child pornography defense attorney
Whether you are facing a chat room charge or a sexting charge or something more complex, you need the counsel of a knowledgeable, experienced Florida child pornography defense lawyer. The professionals at Joffe Law are seasoned in representing criminal defendants in state and federal child pornography cases. From high-profile situations to local cases, we treat each client with professionalism, and we handle each case with the necessary level of discretion. If you are facing a child pornography charge in Miami Gardens FL, you don’t have to face your legal issues alone. Contact Joffe Law to receive a thorough case evaluation.