What Is Child Pornography Law in Florida?

Sex crimes are aggressively prosecuted in Florida, including crimes involving the possession of child pornography. Simply possessing this harmful material even absent any production or transmission of this material is harshly criminalized. If you are arrested for possession of child pornography, it is important that you understand the nature of these charges and how to establish a defense against these crimes.

Federal Crimes for Possession of Child Pornography

State and federal law criminalizes the possession or production of child pornography. Child pornography is generally defined as any visual depiction of a minor child engaging in sexually explicit conduct. Federal law defines sexually explicit conduct as:

• Graphic sexual intercourse or lascivious sexual intercourse where the intimate areas of any person is exhibited;
• Graphic or lascivious simulated masturbation, sadistic or masochistic abuse or simulated bestiality; or
• Graphic or simulated lascivious exhibition of the genitals or pubic area of any person

Federal statutes prohibit the distribution, production and possession of pornographic images of a child. The Federal Sentencing Guidelines allow sentencing enhancements if the prosecutor can prove that the images depict a child under 12 years of age or can establish that the images are sadistic or masochistic in nature. Under federal law, each count of possession of a child pornographic image carries a five-year prison sentence. Production of child pornography carries a 15-year sentence for each count. However, the potential sentence that a criminal defendant may receive depend on a number of factors. One critical factor is whether the defendant is charged with possession of child pornography involving a minor 12 or older or a prepubescent minor. The minimum penalties associated with a possession of child pornography charge depend on whether any of the following aggravating factors are present:

• The age of the children depicted
• Whether the children are involved in sadistic, masochistic or violent acts
• The number of images involved
• Whether the defendant used a computer
• Whether the defendant distributed child pornography
• Whether there is proof that the defendant had previously engaged in a pattern of activity that involves the sexual abuse or exploitation of a minor

Possession of child pornography of a child 12 or older is classified as a Class D felony, which is punishable by up to ten years imprisonment, lifetime supervised release and a fine up to $250,000. Possession of child pornography of a prepubescent minor or minor under 12 is a Class C felony, with a maximum penalty of 20 years in prison, lifetime supervised release and $250,000 in fines.

Basics of Child Pornography Laws in Florida

Florida defines child pornography as knowingly possessing, controlling or viewing child pornography. Child pornography can include pictures, motion pictures, shows, images, data files, representations, exhibitions, computer depictions or other visual presentations. The images or other depictions must show some form of sexual conduct to be considered pornographic. This may include the depiction of the child's intimate body parts, actual sexual activity, simulated sexual activity or physical contact with a child's clothed or unclothed intimate areas with the intent to arouse or gratify either party's sexual desire. Every separate image is considered a separate criminal count in Florida. Each possession of an image is treated separately as a separate and distinct criminal offense.

Alerts of Child Pornography

In some situations, an Internet Service Provider or search engine company may become aware that child pornography files have been downloaded through their server. These entities may report this information to the National Center for Missing and Exploited Children or local law enforcement agencies. Florida has multiple task forces that also address issues related to child pornography. These task forces are often able to use resources to determine which computer was used to download these illegal files. Similarly, federal task forces often have many tools to allow them to find hidden child pornography. They may be able to obtain search warrants for the address that is linked to the IP address to search for physical images as well as computer images. They use these warrants to search computers, phones, disks, other electronic devices and the home. Forensic experts may run lengthy diagnostic tests to try to find the possible location of child pornography in computers and other devices. If child pornography was found, law enforcement returns to the defendant's address. They may interview the individuals in the home or they may arrest them if there is sufficient evidence.

Many law enforcement agencies put together sting operations and use computer hackers and computer technology experts in cases involving child pornography. These operations may identify individuals who are in possession of child pornography or in distribution of these images. These charges can be filed even when a person views a computer-generated image even if he or she does not download it. Other forms of child pornography include short film clips, hundreds of individual images or simulated or actual sexual performances by children.

Penalties for Possession of Child Pornography

Possession of child pornography is considered a third degree felony. This crime carries a maximum jail term of five years in prison, five years of probation and a $5,000 fine for each count. This offense is assigned a Level 5 offense severity ranking under the state's criminal punishment code. The judge is given wide discretion in these cases and is able to give a defendant sex offender probation up to the maximum of five years in prison. However, there are different rules for individuals who are charged with four or more counts of possession of child pornography. These individuals must be given a prison sentence in accordance with the state's criminal punishment code unless there are grounds for a downward departure. The minimum mandatory prison sentence is one year, plus four months in prison for each additional count. A defendant can be sentenced to five years imprisonment for each count. Producing or promoting child pornography is considered a second degree felony. It is punishable by up to 15 years imprisonment.

Sex Offender Registration

Individuals convicted of possession of child pornography are placed on sex offender probation. They are also considered a sexual offender and required to register under this classification. Defendants who are considered a sex offender must comply with state and federal sexual offender registration laws. Registration may be for 15 years, 25 year or lifetime, depending on the severity of the offense.

Florida has two classifications regarding sex offender registration: sexual predators and sexual offenders. Sexual predators are considered the most serious offenders. Individuals convicted of luring or enticing a child, procuring a minor for prostitution or certain lewd or lascivious offenses may be considered sexual predators. Lifetime registration may be necessary for a person convicted of one first degree felony sex crime or two or more second degree felony sex crimes.

Sex offender registration requires providing basic information about you, including your name, date of birth, age and physical description. You must also provide information about your address and place of work. You must also provide information about your offense, including when it occurred, when you were convicted and the age of the victim. This process may be completed while you are incarcerated, or you may be responsible for contacting your local sheriff's office to register after you are released. Depending on the sex offender classification, you may be required to report every three, six or twelve months with the sheriff's office in the county where you reside in order to have your picture taken. This picture is posted to the county's sex offender registry and is accessible by the public.

Because this information is accessible to the public, many sex offenders encounter difficulties in their living environments. They may be harassed or shunned by neighbors who see their offender classification. They may also find it difficult to find a place to live where sex offenders are allowed to live. There may be certain areas where the offender cannot live, such as communities in which the sex offender would be near a school, playground, daycare center or park. Additionally, the sex offender may not be able to work in certain fields or in certain jobs, such as those involving providing services to children or areas where children frequent.

Local rules may provide even greater restrictions than those established under state or federal law. Additionally, sex offenders may not be permitted to own a firearm. The restrictions imposed on sex offenders are generally greater than those imposed on other types of convicted felons.

Potential Defenses to Possession of Child Pornography

There may be viable defenses that can be raised if a person is facing charges for possession of child pornography. Some potential defenses that may apply include:

Illegal Search and Seizure
Many child pornography cases are based on the search and seizure of computers, mobile devices and other property. Usually, law enforcement must have a warrant before searching or seizing these devices. If the warrant was illegally procured or there was not a warrant exception that allowed law enforcement to take or search this property, a criminal defense lawyer may challenge the legality of the search or seizure.

Adult Depiction
This crime is based on the image being that of a child. If the picture is actually depicting a person age 18 or older at the time the image was created, a criminal defense lawyer may establish that this element has not been met. Even if the image appears to depict someone under the age of 18, if the person is an adult, the crime of child pornography should not be charged.

Not in Knowing Possession

Another potential defense is geared toward the mens rea or mental state of the defendant. Possession of child pornography requires the prosecutor to prove by proof beyond a reasonable doubt that the defendant was in "knowing" possession of child pornography. There are many situations in which the defendant is not in knowing possession or is only in transitory possession.

One situation in which this situation may arise is when a person is unwittingly sent a child pornographic image but immediately deletes it once they realize what the image depicts. However, a person may still be charged with the crime for the temporary possession of the image. Alternatively, there may be a thumbnail image that stays on the electronic device or in a memory cache even though the primary image was deleted. A criminal defense lawyer may argue that the image was not intentionally viewed and any residuary thumbnail image or memory cache image was not knowingly possessed. He or she may argue that the defendant should not be punished for such transitory possession of an image when there was no intent behind the crime.

In other situations, a person may not be aware that they are in possession of child pornography. For example, a computer virus or hacker may cause such images to be sent on a computer, unbeknownst to the defendant. In situations in which there are roommates or several people in one residence that use a shared computer or other device, it may be difficult to determine which person actually knew about the image. Sometimes computer experts may be hired to help aid the defense in these types of cases to show that the defendant was not in possession of these images or not in knowing possession.

Good Faith Destruction or Reporting
For federal charges, a possible defense to possession of three images or less of child pornography is that the defendant made a good faith effort to delete the images or report them to law enforcement.

Substantial Assistance
If the defendant provides substantial assistance to identify, arrest or convict another person involved in child pornography, the prosecutor is authorized by statute to reduce or suspend a person convicted of possession of child pornography.

Contact an Experienced Criminal Defense Lawyer for Assistance in Defending Against Charges Involving Possession of Child Pornography

If you are facing criminal charges for possession of child pornography, it is important that you contact a criminal defense lawyer for assistance in defending against these charges. A conviction of even one count of possession of child pornography can result in years behind bars. You are also facing the possibility of being given a hefty fine, a long period of probation and the requirement to register as a sex offender. If convicted, you may find it difficult to find a place to live and work. You may be unable to obtain a professional license if you are convicted of a crime of this nature. To minimize the potential ramifications of a conviction for a sexual offense, it is in your best interest to contact a criminal defense lawyer who has experience in defending individuals accused of possession of child pornography and other sex crimes.

If you are suspected of child pornography, it is important that you understand your legal rights. It is important to invoke your right to remain silent if you are interviewed by police. It is also important that you refuse consent for any voluntary searches or seizures so that you do not inadvertently give the prosecutor information to use against you at a later trial. Any admission to possessing child pornography can potentially lead to your arrest and prosecution.

A criminal defense lawyer can help explain your rights to you. He or she can help you navigate the criminal justice system and explore ways to ensure a better outcome in your case. He or she can negotiate a plea agreement on your behalf in which you receive a lighter sentence in exchange for pleading guilty, or he or she can defend you during a trial to establish that the prosecution cannot meet its high burden.

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