What is Child Pornography?
Under California Penal Code 311, child pornography is illegal in California. The offense of child pornography includes distribution, transport, duplication, printing, advertising, or possession of child pornography. State law defines child pornography as images, video, data, or computer files that show a minor under the age of 18 engaged in a sexual act—whether real or simulated.
This definition includes intercourse, masturbation, exhibition of the genital area for sexual gratification, and oral copulation. The actual age of the person at the time the pornography was produced defines whether the person was under the age of 18. There are “barely legal” sites featuring actors from 18-21. Although they may look much younger, this is not child pornography. The exception to age exists for minors who are legally emancipated and consensual acts between married individuals photographed or filmed.
Included under Penal Code 311 are specific violations involving child pornography:
- It is a crime to share child pornography by printing, duplicating, or exchanging it.
- Distribution of child pornography is a crime and includes sending, possessing, duplicating, producing, or transporting with intent to distribute.
- Knowingly possession or controlling child pornography is a crime.
- Advertising, selling, or distributing child pornography is illegal.
- Knowingly hiring, employing, persuading, or coercing a minor to participate in the production of child pornography is a criminal offense.
For a conviction of child pornography, the prosecutor must prove that you knowingly possessed images depicting minors engaging in sexual acts and that you know the images showed minors under the age of 18 engaging in sexual acts. Child pornography can also be charged federally under 18 U.S.C. 2252.
What Are the Penalties and Consequences for a Child Pornography Charge in California?
Child pornography offenses in the state of California are considered “wobblers.” This means that the prosecutor will decide whether to prosecute the offense as a misdemeanor or a felony. When making that decision, the prosecutor will consider the following:
- Is the material obscene as defined under California law as sexual conduct in an “offensive way” that lacks scientific, political, social, artistic, or literary value? Would an “average” adult agree that the material is offensive?
- Did the defendant attempt to trade the material commercially?
- Did the defendant attempt to show the material to someone under 18?
- Does it appear as though the defendant is a part of a “porn ring,” engaged in the distribution of the materials?
How the offense of child pornography is charged is of the utmost importance as it can determine jail or prison time and dictate whether the defendant will face sexual offender registration. Appearing on the California sexual offender registry can have a devastating effect on your ability to find work and housing. It is important to note that an anime video depicting sexual acts being performed on a minor is not considered child pornography, meaning an actual person must be shown in the material, excluding sketches, drawings, cartoons, and animations. One of the primary factors used in determining whether a defendant will spend time in jail or prison—and how much time—is the volume and nature of the images or videos.
As you can see, there is a wide range of potential charges related to child pornography which results in a range of penalties. The maximum penalty for child pornography charged as a misdemeanor is one year in county jail and a fine of up to $2,000. If child pornography charges are felony charges, a conviction could result in between 16 months and eight years in prison. Fines can be as high as $100,000. Many child pornography convictions also have the penalty of mandatory sex offender registration which can last ten years, twenty years, or for the life of the defendant.
Can a Minor Be Charged with Child Pornography?
You may have heard of teenagers “sexting.” We live in a volatile world that comes with many more risks and temptations for teens. As our laws attempt to keep up with technology, there have been some unintended consequences. While some states specifically address sexting between minors, with penalties that are less severe than those for child pornography, California is not one of these states. Sexting in the state is covered under child pornography laws, making it illegal to have or send images of a minor that show the minor engaged in sexual conduct.
This includes photos of genitals. The court must determine whether the image is intended to cause sexual stimulation. A teen who receives or sends nude photos can be charged until California’s child pornography laws—even if the teen is sending a photo of their own body. Under the law, a minor cannot legally consent to create obscene material, so by sending, asking for, or receiving images, a teenager can be accused of creating or possessing child pornography.
What Are Common Defenses for Child Pornography Charges?
If you are facing child pornography charges, you need a skilled Riverside child pornography defense lawyer who can immediately begin building a strong defense on your behalf. Since the laws in the state regarding child pornography are complex and broad, this is not something you should attempt to handle on your own. While the exact defense your attorney will use will depend on the circumstances and facts surrounding your offense, some of the more common defenses include:
- There was no intent on your part to break the law—perhaps you mistyped a search term, downloaded a file with malware that placed child pornography on your computer, clicked the wrong link, or thought you were looking at pornography of individuals who were over the age of 18.
- No warrant was obtained for the search of your home, business, or car, or there was no good faith reason to search. If this is the case, anything found in the search and seizure may not be used to prove your guilt.
- Other people had access to your computer, your home, your business, or your vehicle, and the child pornography belonged to them, i.e., you are innocent of the charges.
- The “child pornography” does not include photos or videos of those under the age of 18.
- There is mitigating information such as the mental illness of the defendant.
Why You Should Hire a Riverside Child Pornography Defense Lawyer Near You
Possession of child pornography is a serious crime that can have long-term effects on your life and your future. Even if you are entirely innocent of the crime, there is a social stigma attached to any type of sex crime, especially those involving children. You may be found guilty in the court of public opinion long before you face a jury of your peers. There are so many ways in today’s technologically advanced world that another person can set someone up for a crime involving sexual content.
Computers can be hacked, and emails can be sent with a link that downloads pornography. A person could have no idea there was child pornography on their computer until charged with the crime. You need an experienced Riverside child pornography defense lawyer who cares about the outcome of your charges.
How a Riverside Child Pornography Defense Lawyer from Greenberg, Greenberg & Kenyon Can Help
When you choose Greenberg, Greenberg & Kenyon for your Riverside child pornography defense lawyer, you have chosen a firm that will fight aggressively on your behalf. We understand that the long-term consequences as well as the collateral consequences of a sex crime can derail your life. You need a highly skilled criminal defense lawyer who will not hesitate to defend you from these charges. We will put our more than fifty years of combined experience to work for you, ensuring you receive a zealous defense. Contact Greenberg, Greenberg & Kenyon today to schedule a free consultation.
