The crime of child pornography is any pornography that involves a minor under the age of eighteen. The media used in this representation of pornography does not matter, which means that anything from magazines and photographs, to drawings, film, and sound may all be classed as a form of child pornography.
In Massachusetts, child pornography is classified into three categories:
- Possession of child pornography
- Distribution of child pornography
- Producing or causing a child to be involved in child pornography
The crime of child pornography is prohibited at both federal and state levels, and most charges are generally filed at a federal level. Despite attempts by certain individuals and groups, child pornography is not protected under the rights given by the First Amendment, and the creation or possession of this type of pornography will always be punished harshly. The specific charge that any person faces will depend on the situation, and the laws for such are defined in Code 18 USC, sections 2260, 2256, 2252, and 2251.
Examples of Child Pornography Crimes
One very important thing to note about crimes of child pornography, is that the child in question does not necessarily have to be depicted as being involved in sexual acts for an image to be distinguished as child porn. Any sexually suggestive photos that might include naked children will be considered as a violation of federal law. What's more, despite state or local age of consent laws, no minor beneath the age of eighteen should be depicted in any pornographic materials.
Federal law makes it abundantly clear that any sexualized image of a child will be defined as child pornography, and minors under the age of eighteen cannot be depicted in pornography in any circumstances. The penalties are generally determine regarding the type of pornography in question, and the method of use that is associated with it. For instance, a charge may vary depending on the creation of the pornography, including the photographing or filming of children in sexual situations. Charges may also change according to how the child pornography is stored, and whether it has been distributed.
At the basic level, any activity that is related to child pornography will generally fall under federal law - which means that charges are particularly serious. Offenders may be prosecuted and charged under state and federal laws.
Importantly, in order to be charged with the crime of child pornography, an individual must knowingly distribute, possess, or receive child pornography. This means that this particular crime requires some level of intent and knowledge on behalf of the defendant involved. It is not enough to accidentally stumble upon an image on the internet to be convicted of the crime. However, since some internet-based investigators may simply track which computers choose to access websites of child pornography or those who download pornography materials, it can be difficult to ascertain who is intentionally accessing the materials, and who is finding them by accident.
Of course, if an individual downloads hundreds of images, or repeatedly accesses an illegal website, the intent is more obvious.
Child Pornography Punishment
Child pornography is regarded as one of the most notorious crimes in the world, which is why it is generally punished with harsh penalties. Even first time offenders who are convicted of producing child porn can face a combination of fines, and up to thirty years in prison. On the other hand, those convicted of transporting or distributing child pornography may face between five and twenty years in prison, as well as fines. Upon release from prison, any individual convicted of child pornography will be forced to register as a sex offender, and also abide by the rules that have been set forward for such. This can sometimes include staying a specific distance away from a daycare center or school, and informing neighbors of their status.
There are various additional factors that can influence sentencing in a child pornography case, including criminal history, whether the images are sadistic or violent in nature, and whether the minor was abused. Sentencing in any case will be taken very seriously, and in some cases, penalties may be as harsh as life in prison. However, since in some cases files may be mislabeled, or individuals may be directed towards websites that they don't have any prior knowledge about, claims of possession in child pornography cases could be made against innocent people, which is why it's important to be aware of the defenses available.
In Massachusetts, punishment for the three categories are as follows:
- Possession of child pornography - imprisonment in a state prison of not more 5 years, or a fine of not less than $1000 but not more than $10000, or both for first offense
- Distribution of child pornography - imprisonment in a state prison of not less 10 years but not more than 20 years, or a fine of not less than $10000 but not more than $50000 or 3 times the economic gain whichever is greater, or both
- Producing or causing a child to be involved in child pornography - imprisonment in a state prison of not less 10 years but not more than 20 years, or a fine of not less than $10000 but not more than $50000, or both
Child Pornography Defenses
- In most cases, the most effective and significant defense against a conviction of possession or distribution of child pornography is that the defendant in question had no knowledge that what she or he was downloading or accessing was child pornography. In other words, the argument would be made that the receipt or possession of the material was accidental. Since the possession of adult pornography is legal, some individuals may unwittingly access child pornography material without meaning to do so, or they may attempt to download a television show or movie from a file-sharing website without any intent to access something illegal. In circumstances such as these, the best defense is to suggest that the elements that define the action as a crime have not been met, because there was no intent present.
- Alternatively, in some cases, defendants may argue that though the material in question may have been found on their computers, they were not responsible for downloading it. For instance, if a computer has multiple users, such as in work settings, illegal material could be downloaded by one individual then incorrectly attributed to another.
- In some cases, defendants may also choose to raise procedural challenges to the charges that have been brought against them. In any criminal investigation, police must have some manner of probable cause to search an individual's home or computer for illegal materials, and if a search took place without probable cause or without a warrant, then the items obtained during that search may become inadmissible during a trial. This means that a criminal defense against an accusation of child pornography will need to examine how the investigation leading to such charges was conducted.
What to Do If You Have Been Charged
It is recommended that people who come across a website that they believe to be depicting child pornography contact their local agency for law enforcement. If you are convicted of an act of child pornography, whether falling under state or federal law, it's important to remember that such an accusation is very serious, and can carry an extremely long sentence, including possible mandatory sex offender registration. Since these convictions could easily ruin your life, it's a good idea to speak to a criminal defense attorney as early as possible in an attempt to organize your case according to your best interests.