“Child pornography” is a general term encompassing a variety of illegal materials. In today’s world, it most often refers to pictures or videos featuring individuals under the age of eighteen who are depicted in a sexual position or participating in a sexual act. Engaging with such materials is both a state and federal crime. Thus, the same conduct can lead to charges in state circuit court or federal district court, or, at times, it can even lead to charges in both venues at the same time. This is true because the use of the internet to obtain, view, or distribute child pornography is generally sufficient to implicate “interstate commerce” concerns, permitting the federal government to initiate prosecution at its discretion.
Any state or federal charge related to a violation of child pornography laws is extremely serious and can have life-long repercussions. The severity of the violation and the potential range of punishment depend on a number of fact-specific elements the prosecutor must establish in a case, and many of those elements can be challenged by a skilled defense lawyer. While there are important variations in state and federal statutory schemes, both punish possession of child pornography less seriously than production or distribution of child pornography.
Missouri State Charges Relating to Child Pornography
In Missouri, possession of child pornography is criminalized under § 573.037, RSMo., which reads:
A person commits the offense of possession of child pornography if such person knowingly or recklessly possesses any child pornography of a minor less than eighteen years of age or obscene material portraying what appears to be a minor less than eighteen years of age.
The definition of “child pornography” in Missouri includes any obscene material or performance in which sexual conduct, including a minor, is depicted. The depiction can be in the form of a live performance, picture, film, or video, and can include computer-generated images depicting a minor engaged in or observing sexually explicit conduct.
Any person convicted of possession under this statute is guilty of at least a class D felony, which means they face a punishment of one day to seven years in prison.
Punishment can quickly increase to a class B felony, which carries a maximum sentence of fifteen years in prison, if the defendant possesses more than twenty still images or one video of child pornography or qualifying obscene material, or if the person has been convicted of a prior child pornography offense.
Production of child pornography is criminalized in Missouri by § 573.023, RSMo., which refers to the sexual exploitation of a minor.
A person commits the offense of sexual exploitation of a minor if such person knowingly or recklessly photographs, films, videotapes, produces or otherwise creates obscene material with a minor or child pornography.
Obscene material is a subjective standard defined as any material or performance whose primary purpose is an unwholesome interest in sex. This offense starts out as a class B felony punishable by up to fifteen years of incarceration. However, if the minor is under fourteen years old, the penalty increases to a class A felony, punishable from ten to thirty years or life in prison and requiring 85% of the sentence to be served before parole.
Federal Child Pornography Laws
In the federal courts, “child pornography” is defined in 18 U.S.C. § 2256 as any “visual depiction” of an actual minor or a computer-generated image which “is indistinguishable from that of a minor” who is “engaging in sexually explicit conduct,. . . including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means.” The minor featured in the photo or video does not have to be a real person; it can be a computer-generated image that appears life-like and is intended to portray a minor engaged in any of the prohibited acts.
Federal law also differentiates between those who are producing or distributing child pornography and those who are viewing it. The federal sentencing guidelines provide for increased sentences in the form of higher base offense levels and sentencing enhancements based on the specific facts of the defendant’s conduct and the content of the illicit material, as well as the defendant’s criminal history.
Both receiving child pornography and possessing child pornography are referred to as non-production offenses and are generally treated less-harshly than offenses involving the production of child pornography. The charges of receiving child pornography and/or possessing child pornography are closely related– one who possesses any item necessarily also received the item at some earlier point in time. Often, when a person is discovered to merely be in possession of child pornography, there is nevertheless a legally sufficient basis for the government to also charge the person with the more severe crime of receipt because of the way people typically receive child pornography today – via peer-to-peer file-sharing between computers. These file-sharing programs such as BitTorrent are notorious mediums for the exchange of child pornography, and they also present evidentiary issues related to receipt versus possession versus distribution of child pornography because of the way they interact with users’ computers. Therefore, it is important to discuss the details of your case with an experienced attorney to determine whether you can avoid legal culpability for knowingly receiving the child pornography.
While possessing and receiving child pornography can result in severe consequences, distributing, transporting, or importing child pornography (collectively known as “production offenses”) can result in an even higher sentence. Although such a legal construct is familiar—most people accept the drug dealer generally receives a harsher sentence than a mere drug user – the line between possession, receipt, and distribution can be unnervingly thin, especially in Missouri because the Eighth Circuit Court of Appeals, the appellate court that reviews federal crimes committed in Missouri, has ruled a person who acquires child pornography via a peer-to-peer exchange, and whose files were accessible to others, is presumed to be guilty of distribution. Thus, like an example of a possessor of child pornography who is guilty of receipt, in Missouri a possessor of child pornography may unwittingly be guilty of distribution as well.
The harsh sentencing ranges described above can be increased by a variety of factors, including the age of the victims, presence of sadistic or masochistic acts, depictions of violence, number of images possessed by the defendant, and criminal history of the defendant.
Regardless of the ultimate sentence, it is likely a conviction for any charge related to child pornography will require you to register as a sex offender. Not only can registration be embarrassing and destructive to your reputation, but it can also tangibly affect other aspects of your life, ranging from employment eligibility to where you are permitted to live. Heavy monetary penalties can also be imposed in the form of restitution whenever the minor(s) depicted is known to, or can be identified by, law enforcement.
KesslerWilliams Can Help You
If you have been charged with a state or federal child pornography offense, or if you believe you are under investigation for such an offense, you should contact a criminal defense lawyer immediately.
At KesslerWilliams, we have decades of experience defending our clients against the most serious criminal charges, including all types of sex offenses. We know in this digital age child pornography charges are rarely as cut and dry as they seem. For example, we understand the alleged existence of child pornography on your computer does not mean you are guilty, and we will vigorously investigate your case to determine what defenses may apply.
Work with your legal team at KesslerWilliams to analyze and investigate the evidence against you to:
1. Determine whether the alleged material was unintentionally accessed;
2. Determine whether the alleged material qualifies as pornographic;
3. Determine whether someone else downloaded the alleged material to a device or whether it was surreptitiously installed by a malware program; and
4. Argue for the suppression or exclusion of evidence obtained in an invalid or unconstitutional search by the government.
KesslerWilliams is the criminal defense law firm you need to succeed in the courtroom. Contact KesslerWilliams today and put our team of experienced criminal defense attorneys, including former federal and state prosecutors and law instructors, to work to fight for you.