Child Pornography Law
What is Child Pornography?
Child Pornography is a criminal offense and is defined as any visual depiction involving the use of a minor, or one appearing to be a minor, engaging in sexually explicit conduct. Visual depictions include photographs, film, video, pictures or computer-generated images or pictures, whether made or produced by electronic, mechanical, or other means. Child pornography has become particularly problematic with the rise of the Internet and its ability to both transmit data far and wide and provide a level of anonymity to its users and the victims depicted in images of child pornography.
Types of Depictions
Any depiction of a child engaged in sexually explicit conduct may be considered child pornography. This can include photographs, digital images, computer-generated images, drawings, videos, or animations, among others. This also applies if the person in the depiction is actually an adult but appears to be a minor. Moreover, altering an image or video so that it appears to depict a minor may also be child pornography (for example, editing the face of a minor onto the nude body of an adult in an image or video).
Defined Terms for Child Pornography
A "minor" is any person under the age of eighteen years.
"Sexually explicit conduct" means actual, graphic or simulated sexual intercourse, including anal and oral; bestiality; masturbation; sadistic or masochistic abuse; or lewd exhibition of the genitals or pubic area of the minor.
Obviously, producing child pornography is illegal. However, it is also illegal to knowingly possess, distribute, receive, or possess with intent to distribute, any form of child pornography. Each act may receive a different criminal penalty. Inadvertent access is usually not illegal, such as accidentally clicking on a link that directs one's web browser to such a depiction. However, repeated visits may demonstrate a pattern of behavior sufficient for a conviction.
There is an exception to typical definitions of child pornography. If it can be proven that the depiction has serious literary, artistic, political, or scientific value, it may be exempted from child pornography laws. The definition of a pornographic image can be subjective and many courts refer to the case of U.S. v. Dost to determine whether an image meets the criteria for pornography. That case created the "Dost Test" in order to better determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area." The Dost Test has six criteria, not all of which must be present, nor are other criteria necessarily excluded from the test. Those criteria are:
1. Whether the focal point of the visual depiction is on the child's genitalia or pubic area.
2. Whether the setting of the visual depiction is sexually suggestive, (i.e., in a place or pose generally associated with sexual activity).
3. Whether the child is depicted in an unnatural pose or inappropriate attire given the age of the child.
4. Whether the child is fully or partially clothed/nude.
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Sources of Law
It is both a federal and a state crime to knowingly possess, manufacture, distribute, or "access with intent to view" child pornography. The federal law prohibiting child pornography is 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children. In addition, the Child Online Protection Act and the Children’s Internet Protection Act also outlaw child pornography and cover media such as websites and other online forms of child pornography. Additionally, every state has its own laws regarding both child pornography and statutory rape (i.e., sexual activities with a minor).
Child pornographers can be prosecuted by the FBI, the Department of Justice, the U.S. Postal Inspection Service, U.S. Customs, the U.S. Attorney General, state attorneys general, state and local law enforcement, and local prosecutors. Largely, who has jurisdiction and who will be responsible for prosecuting depends on the way in which the pornography was accessed or distributed. If across state lines, such as by the internet or through the mail, federal authorities may be involved, though local authorities can also prosecute for these crimes on their own. Child pornography convictions can result in up to 15 years in federal prison as well as registration by the convicted as a sex offender.
To consult State Legislation regarding child pornography laws and regulations please see the Criminal Code by State page.
You can also find additional resources related to child pornography below on this page, or you can consult with an attorney in your area by visiting our Law Firms page.
Know Your Rights!
Articles on HG.org Related to Child Pornography Law
- Child Pornography Distribution Via Peer-to-Peer NetworksPeer-to-peer networks are commonly used in child pornography investigations. It's important to understand what they are and how they are searched. From a defense standpoint, it is important to understand whether the accused was knowledgeable about the network's settings as that can impact the charges filed.
- Child Pornography Sentencing Trends: 2014 1st Quarter UpdateThe United States Sentencing Commission recently released its 2014 first quarter report. The report indicates a continuing trend regarding child pornography sentences.
- Do I Need a Lawyer for My Criminal Case?Criminal charges are defined as charges brought against someone for an illegal act or an act flouting society's rules. There are instances, however, when innocent people are charged for something they don't understand. Do I need a lawyer usually follows the question "what did I do"? The second question should be given some thought, because the definition of criminal charges has wide latitude. To hire a lawyer well versed in criminal law could result in dismissal of charges.
- Sex Offenders and PredatorsSadly, the news is constantly filled with reports of various sex crimes, like rape, teachers having sex with underage students, and child pornography rings. Another frequent story is that of the sex offender or predator who offends again and hurts somebody. But what is the truth behind sex offenders and predators? Which crimes will result in registration? How can you find out about sex offenders near you? Just how big of a threat do these people pose?
- Legal Considerations for Child Pornography CasesFew sex crimes bring more negative connotations to mind than those related to child pornography. In our computer age where information, images, and videos can be rapidly and easily accessed, this has become a growing area of concern. Although search engines have become better at filtering out inappropriate materials, it is still possible to occasionally come into contact with these matters, either intentionally or not.
- Investigators Deploy Various Tools in Texas Internet Solicitation CasesBecoming the subject of an Internet investigation related to the online solicitation of a minor is life altering. Not only are there criminal penalties, but also if convicted sex offender registration rules apply and jobs and housing can be hard to come by with required background checks.
- Federal Child Porn Sentencing GuidelinesIn imposing sentences in Federal Court judges are required to consider the advisory sentencing guidelines adopted by the United States Sentencing Commission.
- Child Pornography under Texas LawInternet sex crimes are becoming more prevalent and more serious in today's technology-driven society where offenders falsely assume their online identity is anonymous. The Internet Watch Foundation confirmed 1,536 child sexual abuse domains on the Internet in 2008, 58% of which were housed in the United States. Child pornography is a $3 billion annual industry, and continues to grow with its' demand.
- What Are the Defenses to Possession of Child Pornography (Penal Code § 311)?Make no mistake about it. Possession of child pornography (Penal Code § 311) is considered a serious crime. However, it is subject to many defenses, regardless of whether defendant faces federal charges or state charges.
- What is Meeting a Child for Lewd Purposes (Penal Code § 288.4)?Penal Code § 288.4 is a “wobbler,” meaning it can be filed as either a misdemeanor or a felony, depending upon the facts of the case and the client’s criminal history. It is most often filed as a misdemeanor if the defendant has absolutely no prior criminal history (excluding minor traffic offenses such as speeding or parking tickets).
- All Criminal Law Articles
US Federal Child Pornography Statutes
- 18 USC Chapter 110, Section 2251
Sexual exploitation of children.
- 18 USC Chapter 110, Section 2251A
Selling or buying of children.
- 18 USC Chapter 110, Section 2252
Certain activities relating to material involving the sexual exploitation of minors.
- 18 USC Chapter 110, Section 2252A
Criminalizes knowingly advertising or distributing "an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct." The law draws a distinction between obscene depiction of any minor, and mere depiction of an actual minor.
- 18 USC Chapter 110, Section 2260
Production of sexually explicit depictions of a minor for importation into the United States.
- 18 USC Chapter 71, Sec. 1466A - Obscene Visual Representations of the Sexual Abuse of Children
Criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is obscene" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.
Child Pornography Law - US
- Child Online Protection Act (COPA)
The Child Online Protection Act makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that is "harmful to minors" unless the person has restricted access by minors by requiring a credit card number. COPA imposes criminal and civil penalties of up to $50,000 per day for violations.
- Child Pornography - Definition
Under federal law (18 U.S.C. §2256), child pornography1 is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where * the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or * the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or * the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
- Children's Internet Protection Act
The Children’s Internet Protection Act (CIPA) is a federal law enacted by Congress to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program – a program that makes certain communications technology more affordable for eligible schools and libraries. In early 2001, the FCC issued rules implementing CIPA.
- Communications Decency Act (CDA)
The CDA prohibited posting "indecent" or "patently offensive" materials in a public forum on the Internet -- including web pages, newsgroups, chat rooms, or online discussion lists. This would have included the texts of classic fiction such as the "Catcher in the Rye" and "Ulysees", the "7 dirty words", and other materials which, although offensive to some, enjoy the full protection of the First Amendment if published in a newspaper, magazine, or a book, or in the public square. It is also important to note that the CDA was not about child pornography, obscenity, or using the Internet to stalk children. These were already illegal under current law.
- Pedophilia and the Law
A pedophile is an individual whose primary sexual orientation is for children. Quite literally the word pedophilia means love ("-philia") for children ("pedo-"). In the field of psychology, a pedophile is considered to have paraphilia, or a psychosexual disorder. In the field of law, a pedophile is not a criminal unless s/he acts on their desires for children. When a pedophile does act on his or her feelings or desires, they may be committing acts of child sexual abuse or molestation, child exploitation, child pornography, incest, kidnapping, statutory rape, or the prostitution of minors.
- PROTECT Act of 2003 (Amber Alert Law)
The “PROTECT Act of 2003” is an historic milestone for our nation's children. The Justice Department will dedicate the full force of our nation’s resources against those who victimize our nation’s youth. Important coordinated law enforcement information, fast law enforcement response, and swift and sure penalties can work to protect our children. The PROTECT Act comprehensively strengthens law enforcement’s ability to prevent, investigate, prosecute and punish violent crimes committed against children.
- United States Department of Justice - Child Exploitation and Obscenity Section (CEOS)
By the mid-1980's, the trafficking of child pornography within the United States had been almost completely eradicated through a series of successful campaigns waged by law enforcement. Child pornographers had become lonely and hunted individuals. Producing child abuse images was both difficult and expensive, and reproducing images was equally difficult and expensive. Purchasing and trading such images was extremely risky. Anonymous distribution and receipt was not possible and it was difficult for pedophiles to find and interact with each other. Unfortunately, technology has changed the situation.
Child Pornography Law - Europe
- Child Pornography on the Internet Legislation - Europe
With this decision, the European Union aims to prevent and combat the production, processing, distribution and possession of child pornography on the Internet.
- EU Council - Child Pornography
Council framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography.
- Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
Child Pornography Law - International
- Computer Crime Research Center - Child Pornography - International Perspective
Child pornography is a problem of international proportion. The global community has recognised that children are at risk from those who engage in the production, exhibition, distribution, and consumption of child pornography and that children can suffer serious negative effects as a result of pornographic exploitation. The United Nations Convention on the Rights of the Child ("UNCRC"), which has been ratified by an overwhelming majority of the nations of the world, identifies child pornography as a violation against children and requires that nations who are parties to the convention take measures to prevent the exploitative use of children in pornographic materials. Despite the notable efforts of many nations, child pornography remains a serious issue.
- Criminal Code of Canada: Child Pornography and Luring of Children on the Internet
- National Sex Offender Registry - RCMP
In partnership with the provinces and territories, the Government of Canada created a National Sex Offender Registry to provide rapid access by police to current vital information about convicted sex offenders. The Sex Offender Information Registration Act [SOIRA] was proclaimed as law and came into force on December 15, 2004.
Organizations Related to Child Pornography Law
- Association of Sites Advocating Child Protection (ASACP)
Founded in 1996, the Association of Sites Advocating Child Protection (ASACP) is a non-profit organization dedicated to eliminating child pornography from the Internet. ASACP battles child pornography through its CP reporting hotline, and by organizing the efforts of the online adult industry to combat the heinous crime of child sexual abuse. ASACP also works to help parents prevent children from viewing age-inappropriate material online.
- Child Exploitation and Online Protection (CEOP)
The Child Exploitation and Online Protection (CEOP) Centre is dedicated to eradicating the sexual abuse of children. That means we are part of UK policing and very much about tracking and bringing offenders to account either directly or in partnership with local and international forces.
- Crimes against Children - Interpol
Children are the most vulnerable individuals in our society; they are also the most precious commodity that the world has and have a right to be protected from all forms of abuse. INTERPOL as an organization is also committed to eradicating the sexual abuse of children and has passed several resolutions making crimes against children one of International policing top priorities.
- Cyber-Rights & Cyber-Liberties (UK)
Cyber-Rights & Cyber-Liberties (UK) is a non-profit civil liberties organisation founded on January 10, 1997. Its main purpose is to promote free speech and privacy on the Internet and raise public awareness of these important issues. The Web pages have been online since July 1996. It should be noted that the organisation is not connected to the University of Leeds nor supported by the University of Leeds in anyway and all members of the organisation are acting in a purely personal capacity unless it is expressly stated otherwise.
- Dru Sjodin National Sex Offender Public Website (NSOPW)
The Dru Sjodin National Sex Offender Public Website (NSOPW), coordinated by the U.S. Department of Justice, is a cooperative effort between Jurisdictions hosting public sex offender registries (“Jurisdictions”) and the federal government. These Jurisdictions include the 50 states, Puerto Rico, Guam, the District of Columbia, and participating tribes. This Website is a search tool allowing a user to submit a single national query to obtain information about sex offenders through a number of search options.
- Internet Watch Foundation (IWF)
IWF was established in 1996 by the UK internet industry to provide the UK internet Hotline for the public and IT professionals to report potentially illegal online content within our remit and to be the 'notice and take-down' body for this content. We work in partnership with the online industry, law enforcement, government, the education sector, charities, international partners and the public to minimise the availability of this content, specifically, child sexual abuse content hosted anywhere in the world and criminally obscene and incitement to racial hatred content hosted in the UK.
- National Center for Missing & Exploited Children (NCMEC)
The National Center for Missing & Exploited Children’s® (NCMEC) mission is to help prevent child abduction and sexual exploitation; help find missing children; and assist victims of child abduction and sexual exploitation, their families, and the professionals who serve them.
We are the leading advocate for children’s rights, active in 190 countries through country programmes and National Committees.
- Virtual Global Taskforce (VGT)
The objectives of the VGT are: * to make the Internet a safer place; * to identify, locate and help children at risk; and * to hold perpetrators appropriately to account. The VGT is made up of the Australian Federal Police, the Child Exploitation and Online Protection Centre in the UK, the Italian Postal and Communication Police Service, the Royal Canadian Mounted Police, the US Department of Homeland Security and Interpol. Jim Gamble, the Chief Executive of the Child Exploitation and Online Protection Centre is the Chair of the VGT.
Publications Related to Child Pornography Law
- International Centre for Missing & Exploited Children (ICMEC) - Publications
The International Centre for Missing & Exploited Children (ICMEC) is the sister organization of the US-based National Center for Missing & Exploited Children (NCMEC).
- Internet Business Law Services (IBLS) - Internet Pornography
IBLS presents articles and documents regarding Internet Pornography submitted by various countries.
- Internet Child Pornography and the Law: National and International Responses