Child Pornography

CHILD PORNOGRAPHY LAWS IN CALIFORNIA

Production and distribution of child pornography under Penal Code sections 311.1 and 311.2

Penal code sections 311.1 and 311.2 are the most common prosecuted child pornography laws in California.  Under these code sections, it is a crime to directly or indirectly send to a state, directly or indirectly bring into a state, possess, prepare, publish, produce, develop, print, or duplicate child pornography with the intent of exchanging, distributing, or exhibiting it.

Sexual Exploitation of a minor under Penal Code section 311.3

Under Penal Code section 311.3, it is unlawful to intentionally and knowingly develop, duplicate, print, or exchange any material that constitutes child pornography.  Unlike Penal code sections 311.1 and 311.2, this code section does not require that the perpetrator intend to distribute, exchange, or exhibit the child pornography.  For example, ever since his children were small, Keith has taken pictures of their nude bodies for aesthetic reasons.  Keith and his wife regularly invite their friends, who are also parents, to their house for dinner, and on those occasions encourage these friends to preserve and collect photos of their nude children as a form of art.  These friends heed Keith’s advice and bring over nude photos of their children to Keith’s house.  Keith and his wife duplicate these images and organize them in an album for their own keeping.  Though Keith and his wife had no intent to distribute, exchange, or exhibit these photos, they may be prosecuted for a PC 311.3, because of their role in duplicating and assembling the controversial images.

Hiring or recruiting a minor for child pornography under Penal Code section 311.4

Penal code section 311.4 makes it unlawful to recruit or use a minor to pose for pornographic photo.  To convict you of this crime, the prosecutor has to prove beyond a reasonable doubt that you knew or reasonably should have known that the minor is under the age of 18.  For example, Jack, a professional photographer, is recruited at an all boy high school to take photos for the senior class’s yearbook.  Jack drills a hole in the bathroom of the high school and takes photos of some of the men’s private parts. These men are boys under the age of 18.  With regards to these boys, Jack is guilty of 311.4 because a) he used underage boys in a pornographic photo and b) he should have known that these boys were under the age of 18, as the bathroom was adjacent to the students’ locker room, and frequented by underage boys.

Advertising Child Pornography under Penal Code section 311.10

Penal Code section 311.10 makes it unlawful to advertise for sale or distribution any obscene or pornographic material that you know depicts a person under the age of 18.

Possession of child pornography under Penal Code Section 311.11

Under Penal Code section 311.11, it is unlawful to knowingly possess pornographic material involving a person under the age of 18.  For example, Jack has on his lap top computer several photos of teenage boys, between the ages of 14-16, engaging in sexual acts with one another.  Jack is guilty of code section 311.11 because he is in knowing possession of pornographic material involving actual children under the age of 18.  Now imagine that, instead of actual photos, Jack has on his computer comics containing drawings of children engaged in sexual activity. Jack in this scenario is not guilty of a 311.11 because no actual children were involved in any way in the comic drawings.

THE LAW: THE LEGAL DEFINITION OF CHILD PORNOGRAPHY

What is considered child pornography depends, in part, on which of the above child pornography laws apply. However, for all of the above laws, the prosecutor has to address and prove each of the elements below:

The subject material was “child pornography”

Child pornography is defined as any matter or material that depicts sexual conduct by an actual person under the age of 18.   For purposes of the code section, any “matter” or “material” is any recording, data, or image including film, photographs, photocopies, and videos.  “Sexual conduct” is any sexual act either actually performed or simulated.

Note that child pornography laws do not apply to minors who are legally emancipated or to lawful sexual conduct between two individuals who are married.  For example, 19-year-old Jack is married to 17-year-old Julie.  Jack and Julie create a sex tape involving the two of them having sex.  Neither Jack nor Julie can be prosecuted for child pornography because the sexual activity and its recording took place when they were married.

You knew that the material in your possession was child pornography involving an individual under the age of 18

In order for the prosecutor to convict you of any child pornography offense, he or she must prove beyond a reasonable doubt that you knew the following: a) the material you were transporting, possession, advertising, etc. was child pornography, and b) the material showed an actual person involved in a sexual activity or simulating a sexual activity.

Knowledge is often a difficult element to establish in child pornography cases.  In a digital and electronic age when information gets rapidly and at times inadvertently disseminated, it is very possible to have child porn on one’s computer without having the slightest knowledge or awareness of this existence.

The material that you possessed was “obscene”

Some child pornography laws require the prosecutor to prove that the material in your possession was “obscene.”  In general, material is “obscene” if it a) shows or depicts sexual conduct in an offensive manner, and b) a reasonable person would find that the material lacks any literary, political, or scientific value, and that it appeals to a prurient interest.  For example, Jack is a movie director and producer.  Jack produces a movie that describes the plight of two homosexual teenagers who fall in love in a small conservative town.  The movie has some explicit simulated sex scenes between two underage teenage actors.  Jack cannot be found guilty of child pornography because the movie has artistic value.

The material in question has no legitimate purpose

To prove you guilty of child pornography, the prosecutor must in addition prove that the material you possessed had no legitimate purpose.  If the material does serve a legitimate purpose, then you cannot be found guilty of child pornography.  For example, material that is used by law enforcement in the investigation of a crime or that serves a legitimate medical, scientific, artistic, or educational purpose or value is protected material and your possession of such material cannot subject you to prosecution for child pornography.

PENALTIES FOR CHILD PORNOGRAPHY

The penalties for child pornography vary depending the specific code section under which you are being prosecuted.  Generally, child pornography is prosecuted as either a felony or a misdemeanor, depending on the specific facts of the case and your criminal history.   The nature and severity of the punishment ascribed to you also depends on factors such as whether the material was “obscene,” whether you intended to distribute it for commercial purposes, and whether you intended to distribute it or show it to a person under the age of 18.  For example, Jack takes photos of a teenage boy performing sexual acts.  He then trades these photos with his buddies on the internet and receives monetary compensation in exchange.  Jack is guilty of child pornography for producing and disseminating these images.  He is subject to harsher penalties for attempting to sell the images for money. 

A conviction for any child pornography law will require you to register as a sex offender.

DEFENSES TO CHILD PORNOGRAPHY

You were entrapped

Many child porn arrests take place as a result of undercover internet sting operations where an undercover cop attempts to lure a potential violator to buy child porn.  But if the undercover cop used pressure, harassment, fraud, flattery, or threat to attempt to lure you to commit an act of child porn that you otherwise would not have committed, you might have an entrapment defense.

You lacked the required “knowledge” or “intent”

All child pornography laws require that you actually knew that the material in your possession or that you were transporting or advertising was child porn.  The child pornography in your possession may have been featuring teenagers who look like adults.  You may have accidentally downloaded or stored in your computer child pornography. In both scenarios, you did not have the required intent or knowledge under the code section.

You were falsely accused

An estranged spouse, girlfriend, or boyfriend may have planted child pornography on your computer or placed child pornography in your home, car, or anywhere else in your possession.

Law enforcement obtained the evidence against you by violating your constitutional rights

Child pornography arrests and charges are often based on evidence obtained from a suspect’s cell phone, inside his or her home, or on his or her computer.  You have a Fourth Amendment right to the privacy of your home.  This right to privacy extends to contents of your phone and computer.  Law enforcement therefore need either a warrant or your explicit consent to search your home or the contents of your cell phone and other electronic devices.  If law enforcement conduct this search without a legitimate warrant or your expressed consent, and if no exigent circumstances justify this failure, then the evidence against you was unlawfully obtained and as such is inadmissible in a court of law.  A skilled defense attorney can use this fact as a basis for dismissal of the charges against you or as leverage to negotiate a better disposition on your behalf.

HOW WE CAN HELP YOU

Negin Yamini examines every substantive and procedural challenge relevant to your case.  Even if the evidence is overwhelming against you, Negin will explore your background and circumstances and artfully present a mitigating package to the prosecution.  Most violators of child pornography have a psychological addition that has been left untreated for years.  If it can be shown that you have a psychological addition, and that you are remorseful about your conduct and dedicated to the goal of rehabilitating yourself, then a judge or prosecutor may consider a more lenient but constructive sentence that emphasizes treatment and rehabilitation as opposed to punishment.

Actual Case:

In People v. Kevin H (KA101432), the defendant, Mr. H, was charged with child pornography and two counts of sexual assault on two minors.  Mr. H had allegedly committed the crimes in 1994.  Then, he was questioned by law enforcement and released.  No arrest was made and no charges were filed.  Nearly twenty years later, in 2014, Mr. H was exchanging child pornography on the internet.  He thereby caught the attention of the FBI, who obtained a search warrant to search his residence.  In this search, the FBI discovered more child pornography in Mr. H’s possession as well as a photo of two minors depicted in sexually suggestive poses.  The district attorney’s office uses this photo to dig up the allegations against Mr. H in 1994, and to file charges of child pornography and sexual assault on a minor against him.  Mr. H hired Negin Yamini to represent him.  The evidence against Mr. H was damning and abundant.  However, there were procedural loopholes related to Mr. H’s constitutional rights that Negin thoroughly explored in one motion or brief after another.  After 18 months of litigation, Negin was able to reduce the prosecution’s offer from 23 years to 4 years of state prison.  This significant reduction was the result of Negin’s creative and artful litigation of substantive, mitigating, and procedural factors on behalf of Mr. H.

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