Wynwood Child Pornography Attorney
We specialize in defending state & federal sex crimes charges
State and federal law enforcement agencies aggressively investigate crimes that sexually exploit children. For people who are investigated for child pornography, the process can result in embarrassment, loss of credibility, and the potential for very serious criminal charges. Even when someone who is under investigation turns out to be uninvolved in any crimes against children, it can take years to undo the damage false charges sometimes cause. If you have been wrongfully accused of a child pornography-related offense in Wynwood, immediately contact a Wynwood child pornography defense lawyer. David Joffe specializes in representing Florida residents in child pornography cases. You don’t have to face a wrongful child pornography charge alone. Call the professionals at Joffe Law, P.A. to help with your case.
State offenses vs. federal child pornography charges
Child pornography cases very easily become federal court matters. Even in a case that may seem like all of the activity took place in one state, there may be an element in the case that implicates federal jurisdiction as interpreted by a federal court. Generally, the following factors can make state charges federal offenses:
- the involvement of a federal government agency
- an element in the case that occurs within the stream of interstate or international commerce
- activity that occurs in a U.S. territory
- activity that occurs on federal government property
How false child pornography accusations happen
If you are currently wondering how to respond to a false child pornography charge, chances are at least one person has wondered how you came to be accused of such a serious offense. We understand that false accusations can come about in many ways. In very heated family law cases, a former partner who wants to sabotage the other party may falsely accuse the other party of a crime that involves abuse against children. People who are in a position of authority or who have something someone else wants may be blackmailed with a false accusation that could damage the person’s reputation.
In other cases, a false accusation arises from a simple mistake. For example, someone who unknowingly downloads malware that transmits a file that contains child pornography onto the user’s computer. If the file comes from an area of the internet that is being monitored by law enforcement, the owner of the computer may be investigated or charged with a crime. The computer owner’s defense attorney may fight the charge by providing evidence of the virus infection and proof that the computer owner tried to have the problem repaired by a computer specialist.
In another example, someone may allow a coworker to borrow his or her assigned work laptop. When the worker receives the laptop back, the device may have child pornography downloaded onto its storage drive. A Wynwood sex crimes attorney may challenge the charge by proving that someone else had possession of the laptop at the time the files were downloaded. The lawyer may also provide proof that the employee to whom the laptop was assigned never accessed the files that contained the illegal images to view the child pornography.
The defense strategy your Wynwood child pornography defense lawyer will use depends on the facts of your case. Contact Joffe Law to receive a case evaluation.
Possession of child pornography under Florida law
Florida law and federal law define child pornography as a visual depiction that includes a minor who is engaging in sexual activity. Under federal and state law, an individual possesses an item if the item is in an area that is within the individual’s control. Federal and state law recognize actual and constructive possession.
Actual possession is what most people imagine when they think of the concept of possessing an illegal item. Examples of actual possession include:
- the defendant stashing a flash drive that contains sexual images of a minor directly onto his or her body
- the defendant holding a phone that contains child pornography in a pocket in his or her clothing
- the defendant storing a storage device that contains child pornography in his or her backpack, purse, or any other accessory the defendant is holding, wearing, or carrying
- the defendant stashing pornographic images of a child under his or her seat while in a car
Constructive possession is often less concrete than actual possession. In cases that involve constructive possession, the accused party does not necessarily have the illegal materials within physical reach, but the item is in an area that is under the defendant’s control. A state or federal court is likely to find that a defendant constructively possessed child pornography if he or she:
- stores the illegal materials in his or her assigned storage unit
- stores the illegal materials in the drawer of his or her designated desk at work
- stores the illegal materials in his or her personal bedroom closet at home
- stores the illegal materials in the trunk of his or her car
Your attorney will likely have more of an opportunity to challenge possession if the prosecution is arguing you constructively possessed illegal materials. Proving constructive possession can be especially challenging in shared spaces like common areas inside of a home or shared spaces at work or on shared devices like library computers.
A state level charge for possession of child pornography is a third-degree felony. If the defendant is convicted, the court may sentence the defendant 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 every image the defendant is accused of possessing. If convicted, the court may sentence the defendant separately for each count of possession up to the maximum sentence.
Do not say anything that might incriminate you. Speak with an attorney first.
Promotion of child pornography
Florida’s promotion of child pornography statute does not clearly define how many or how few sexual depictions of a minor the defendant must transmit to meet the definition of promoting child pornography. Therefore, whether a defendant transmits one image via email or posts a link on social media that directs visitors to child pornography, the defendant may be convicted for promoting child pornography.
Florida law also includes a provision that is surprising to many. If a defendant possesses three or more copies of a depiction of a minor, the court may presume the defendant had the intent to promote child pornography.
TRANSMISSION OF MATERIALS IS HARMFUL TO A MINOR
Not only is it illegal to transmit child pornography, but Florida courts may convict a defendant for transmitting sexual materials to a minor. Florida’s statute that prohibits the transmission of materials that are harmful to minors does not specify exact types of prohibited materials. Nevertheless, Florida prosecutors use the law to charge individuals who use electronic means to send sexual materials to minors. Instead, the statute provides guidelines for determining whether materials are harmful to minors. According to the statute, materials are harmful to minors if:
- the content of the material appeals to the prurient, shameful, or morbid interest
- the content of the material is patently offensive
- the content is without literary, artistic, political, or scientific value
To substantiate a claim of transmission of materials harmful to a minor, the prosecution must prove the defendant sent the harmful content to a specific minor. The prosecution must also prove the defendant knew the recipient was a minor at the time of the offense. Transmission of materials harmful to a minor is a third-degree felony under Florida law. If the defendant is convicted, a state court may sentence the defendant to a maximum of five years in prison and order the defendant to pay a fine of up to $5,000.
USE OF A CHILD IN A SEXUAL PERFORMANCE
Anyone who authorizes, employs, or induces someone who is younger than 18 years of age to participate in a sexual performance may be charged and convicted for use of a child in a sexual performance. The child’s parent, guardian, or custodian may also be charged if he or she consents or gives permission for the child to be used in a sexual performance. Florida courts apply a more general definition of the terms “custodian” and “guardian.” Even if the defendant is not the child’s legal guardian, the defendant may be convicted if he or she was temporarily responsible for supervising or providing care for the child in any capacity. Use of a child in a sexual performance is a second-degree felony. The maximum sentence for the offense is 15 years in state prison and a fine of up to $10,000.
Sexting laws in Florida
When two adults overtly consent to exchanging sexual text messages, generally, no laws are broken. However, when one of the parties involved in a minor, adults and minors may be charged criminally in a Florida court. Florida courts treat adults and minors differently in sexting cases.
SEXTING CASES BETWEEN MINORS
As smartphones and webcams have become available to teens and children who are even younger, Florida’s courts have seen an influx of child pornography cases in which the defendant is a minor. Most cases that involve sexting or other means of digitally exchanging sexual messages between two minors are handled by Florida’s juvenile court system.
If a minor is accused of sexting with another minor, a juvenile court may require the minor 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 may appeal the court’s decision within 60 days or otherwise complete the requirements. Failure to complete the requirements may result in the defendant’s driver’s license being suspended.
For minors who have had one prior offense for sexting with another minor, the consequences may include time in jail. As a second-time offense, a minor who participates in sexting with another minor may be convicted of a first-degree misdemeanor offense. The court may sentence the defendant to a maximum of one year in jail and a fine of up to $1,000.
For third-time minor offenders of the state’s sexting law, the offense is a third-degree felony. If convicted, the minor defendant may be sentenced to a maximum of five years in prison and ordered to pay a fine of up to $5,000. If a court determines that a sexting case between minors is very serious, the court may opt to try the minor defendant as an adult.
SEXTING BETWEEN AN ADULT AND MINOR
In sexting cases that involve adults who exchange sexual text messages with a minor, the adult will be charged under Florida’s child pornography laws. Adults who exchange sexual text messages with a minor may be charged with any of the following offenses:
- Transmission of Materials Harmful to a Minor
- Possession of Child Pornography
- Use of a Child in a Sexual Performance
- Promotion of a Sexual Performance by a Minor
- Promotion of Child Pornography
Parents should communicate openly with their children about the personal and legal consequences of sexting. Adults should always verify the age of the other party before deciding to exchange sexual text messages. Adults who receive unsolicited sexual images of a minor should contact law enforcement if necessary and immediately delete the photos. You may also wish to consult with a Wynwood child pornography defense lawyer if you believe you may be accused of soliciting the photo.
Child pornography defense lawyer in Wynwood FL
Florida’s child pornography laws make it surprisingly easy for someone to be wrongfully accused of a child pornography-related offense. Retaining a child pornography defense attorney at the first sign of a criminal investigation can help you avoid the common pitfalls of navigating a serious criminal case without adequate legal representation. Whether you are facing a chat room charge or if you are being questioned about illegal images you recently discovered on your computer or another device, it is never too early to retain legal counsel. Contact the team of legal professionals at Joffe Law, P.A. We will review your case and determine the best approach to defending you.