Federal authorities are increasing their efforts to investigate and prosecute child pornography offenders. Agents are coordinating with state and local law enforcement to pursue individuals involved in the trafficking of child pornography, as well as those persons who only possess child pornography. This article is a brief summary of federal laws on possession of child pornography.
Congress has outlawed the possession of child pornography under Title 18, United States Code, Sections 2252 and 2252A.
18 USC 2252 provides that a person is guilty of a felony where he or she…
knowingly receives, or distributes, any visual depiction of a minor engaging in sexually explicit conduct.
See 18 USC 2252(a)(2).
This statute applies in cases where the subjects in the pornography are real individuals. However, where the subjects are computer-generated, then 18 USC 2252A applies. That statute covers a larger category of pornography because it is not limited to cases involving actual minors.
Section 2252A(a)(2) prohibits the possession of “child pornography,” which does not necessarily have to show actual minors.
“Child pornography” is defined as the following:
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-
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such 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
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
See 18 USC 2256(8).
The element in any child pornography charge that gives federal courts jurisdiction is that the visual depiction or child pornography was transported through or had some relation to interstate commerce. This element can be shown by the fact that the visual depiction was downloaded over the internet at any point in time.
A “minor” is defined as any person who is under the age of 18. See 18 USC 2256(1).
Generally, “sexually explicit conduct” means:
- actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex
- bestiality
- masturbation
- sadistic or masochistic abuse
- lascivious exhibition of the genitals or pubic area of any person.
See 18 USC 2256(2).
In cases where the defendant is charged with violating Section 2252 (real minors) or Section 2252A (computer-generated images), the maximum penalty on the first offense is 10 years in prison. See 18 USC 2252(b)(2) and 2252(A)(b)(2).
However, this maximum applies only in cases where the defendant has no prior offenses. Federal prosecutors can seek an enhanced penalty where the defendant has priors.
The mandatory minimum penalty for possessing child pornography is 10 years in prison, with a maximum of 20 years incarceration, where the defendant has any of the following prior offenses:
Chapter 110 of the criminal code relating to child pornography. 18 USC 2251-2260.
- 18 USC 2251. Sexual exploitation of children
- 18 USC 2251A. Selling or buying of children
- 18 USC 2252. Certain activities relating to material involving the sexual exploitation of minors
- 18 USC 2252A. Certain activities relating to material constituting or containing child pornography
- 18 USC 2252B. Misleading domain names on the Internet
- 18 USC 2252C. Misleading words or digital images on the Internet
- 18 USC 2257. Record keeping requirements
- 18 USC 2257A. Record keeping requirements for simulated sexual conduct
- 18 USC 2258. Failure to report child abuse
- 18 USC 2260. Production of sexually explicit depictions of a minor for importation into the United States
Chapter 71 relating to obscenity. 18 USC 1460-1470.
- 18 USC 1460. Possession with intent to sell, and sale, of obscene matter on Federal property
- 18 USC 1461. Mailing obscene or crime-inciting matter
- 18 USC 1462. Importation or transportation of obscene matters
- 18 USC 1463. Mailing indecent matter on wrappers or envelopes
- 18 USC 1464. Broadcasting obscene language
- 18 USC 1465. Production and transportation of obscene matters for sale or distribution
- 18 USC 1466. Engaging in the business of selling or transferring obscene matter
- 18 USC 1466A. Obscene visual representations of the sexual abuse of children
- 18 USC 1468. Distributing obscene material by cable or subscription television
- 18 USC 1470. Transfer of obscene material to minors
Chapter 109A concerning sexual abuse. 18 USC 2241-2248.
- 18 USC 2241. Aggravated sexual abuse
- 18 USC 2242. Sexual abuse
- 18 USC 2244. Abusive sexual contact
- 18 USC 2245. Offenses resulting in death
Chapter 117 involving transportation of minors for illegal sexual activity. 18 USC 2421-2428.
- 18 USC 2421. Transportation generally
- 18 USC 2422. Coercion and enticement
- 18 USC 2423. Transportation of minors
- 18 USC 2424. Filing factual statement about alien individual
- 18 USC 2425. Use of interstate facilities to transmit information about a minor
Any violation of the Uniform Code of Military Justice concerning rape, sexual assault or other forms of sexual misconduct. See 10 USC 920.
Any state crime related to aggravated sexual abuse, sexual abuse or other sexual misconduct involving a minor.
Prior conviction for child pornography of any kind.
This is only a summary of the penalties for possession of child pornography in federal court. The facts and circumstances in each case will determine the number of months in federal custody on conviction.
For example, the age of the depicted minor will enhance the penalty (prepubescent minor will result in a longer prison sentence).
In each case, qualified legal counsel should be consulted.
