Child pornography offenses can be charged in either state or federal court. Federal penalties are much more sever and can have minimum prison terms. Which jurisdiction prosecutes the case depends on a variety of factors including the age of the victims, the number of images and whei
Under California law, a person who possesses images that depicts a person under 18 years of age engaging in or simulating sexual conduct, or the picture is focused on the child’s genitals, commits a felony punishable by up to a year in prison, a $2,500 fine or both. (Penal Code sections 311.1, 311.2, 311.3, 311.4, 311.10, and 311.11.) In order to be guilty of the offense, the person must know that he or she possesses the material that depicts a person under 18 engaging in or simulating sexual conduct. The prosecutor does not have to prove that you know the person is under 18 but does have to prove that the material meets the legal definition of obscene material. Not all pictures of children – even if the child is nude – meet the legal definition of child pornography.
California’s definition of sexual conduct includes showing of the genitals, pubic or rectal areas. Therefore, a 19-year old person sexting with a 17-year old could be charged with the crime of possessing matter depicting a minor engaged in sexual conduct if the 19-year old receives a nude self-portrait of the 17-year old that meets the qualifications.
If the defendant has a prior conviction for the offense or any other offense that requires registration under the state’s Sex Offender Registration Act (or an attempt to commit any of these offenses), a new conviction for possession or control of matter depicting a minor engaging in or simulating sexual conduct will result in a prison sentence of 2, 4, or 6 years. (Cal. Penal Code § § 311.4, 311.11)
The most common situation that I have seen are people who have downloaded images from a peer to peer website. In many of these cases, individuals are swapping images between themselves and others via these programs. Having the image on one’s computer alone is considered possession even if it has been delated.
If you have been accused of a child pornography offense call us.
