Child Pornography Laws: Evolution, Impact & Legal Framework

Before 1982, some criminal defense lawyers argued that child pornography should be considered a form of protected speech and cited the First Amendment to the United States Constitution.

Notwithstanding, federal and state courts have consistently concluded that child pornography is not protected speech or a form of artistic expression.

Recent History Of Child Pornography Law

In 1982 the U.S. Supreme Court in New York v. Ferber upheld the right of states to prohibit the distribution or possession of sexually explicit images of children. The Court held that the state laws do not violate the First Amendment…”

The Court pointed out that states must be given greater flexibility in regulating their state laws concerning child pornography, pointing out the state has the constitutional power to legislate against the exploitation of children in their state, given the emotional and psychological harm these children suffer.

Department of Justice sees sharp rise in child pornography

In more recent years, the federal government, through Attorney General Eric Holder, speaking on behalf of the U.S. Department of Justice, noted the expansive growth in the production and distribution of child pornography, stating:

“Unfortunately, we’ve also seen a historical rise in the distribution of child pornography, in the number of images being shared online, and in the violence associated with child exploitation and sexual abuse crimes. Tragically, the only place we’ve seen a decrease is in the age of victims. This is – quite simply – unacceptable.” 

Severe Psychological Damage To Children

Child exploitation

Sexual exploitation of this type has been proven to impair normal self-development and, like rape victims, instills fear and distrust in their relationships in the future. The psychological damage to children is profoundly damaging and permanent.

Expansion via the internet

Possession of child pornography has become a national and local problem. People convicted of child pornography often come from broad social, economic, and educational backgrounds. This makes anyone with an internet connection a potential offender.

The growth of online digital technology has made the proliferation of child pornography readily accessible to viewers of child pornography. Viewers of child pornography join networks on the “Dark web” and download and share child pornography with others in their network.

The dark web

The Dark Web has become notorious for the exchange and trading of child pornography that gets viewed by a worldwide audience of fellow offenders. Sharing such photos compound the crime under the statute prohibiting the copying and distribution of child pornography.

State And Federal Prosecution of Child Pornography Offenders

It has been the federal government that investigates and prosecutes the majority of large-scale child pornography syndications.

While states have their own child pornography statutes that are enforced and prosecuted by sex-crime units of state and county prosecutors, The federal government prosecutorial jurisdiction is nationally recognized by state courts due to power vested in them by the interstate commerce clause that makes sale and distribution across state lines a federal offense.

Should an offender use their computer to transmit pornographic images of minors to someone outside their state, it automatically triggers federal jurisdiction. Federal enforcement agents search and seize any materials used in the crime, including, but not limited to, servers, hard drives, and CD and thumb drive storage units.

Internet browser stores images on hard drive

Viewers of child pornography are usually surprised to learn that every time they view an image or video over the internet, their computer automatically downloads these images to a folder that sits on the person’s hard drive.

These downloads are computer cache files and provide the computer user with quick loading of previously viewed web pages. Depending on the frequency of usage, images can reside on someone’s hard drive for months, if not years. Should the computer be seized by law enforcement, these files can be retrieved and used as evidence against the possessor of child pornography.

Penalties for Possession of Child Pornography

Federal penalties

Federal offenses typically carry significantly higher prison terms than states. In the case of child pornography, a first-time conviction for possession or distribution of child pornography carries a mandatory minimum of five years in federal prison.

Federal penalty enhancements

Penalty enhancements are based on the nature and number of child pornographic photos or videos and whether the depiction of the child includes acts of violence or torture. Enhancement can also depend on the child’s age and the types of sexual acts depicted in the video.

State Penalties

Individual State laws differ substantially and are much lower than federal penalties. For example, in California, the penalty for possession of child pornography can be charged either as a misdemeanor or a felony

Under Californias Penal Code, a misdemeanor for possession of child pornography is punishable by a jail sentence of up to one year and a fine of $1,000. A felony for possessing child pornography can result in three years in state prison and a fine of up to $10,000.

A conviction can also result in a lifetime “sex offender registration” order requiring the offender to register their name and residential address within the county where they reside. The information is treated as public information and is distributed to local police departments and can be accessed by third-party private sites that distribute this information to local communities.

This allows other residents to know if a sex offender is living in their neighborhood, which includes the name and address of the offender as well as the crime(s) for which the offender was convicted.

Federal Sentencing Guidelines

Federal Sentencing Guidelines are incredibly complex regarding the many different types of enhancement penalties and their cumulative effect on offender prison terms.

Federal Sentencing Examples and Ranges

According to the 2021 U.S. Sentencing Committee Penalty Enhancements

Prison Time For Possession (Nonproduction of Images)

The current focus on child pornography sentencing:

• Possession and receipt of child pornography
• Distribution of child pornography
• Possession with intent to distribute or sell
• Transportation of child pornography
• Production of child pornography

In 2019, the commission found over 95 percent of possession charges against child pornography offenders received significant penalty enhancements based on the use of:

• A computer to download child pornography
• Possessing pornographic images of children under 12 years old.
• Possessing over 600 pornographic images
• Possess images depicting sadistic or masochistic abuse of an infant or toddler
• Repeated within three years of conviction
• Failing to register as a sex-offender
• Prior state or federal criminal record for sex offenses

Examples of Possession and Distribution

Possession without Distribution To Others

• The average sentencing ranges for possession and distribution of child pornography range from 37 months to 180 months.

Possession with Distribution

• The sentencing range for distribution (without financial gain) went as high as 240 months.

Possession with enhancement penalty

• If a defendant is shown to have prior federal or state-qualifying sex offenses, the penalty range for distribution and receipt offenses increase to a mandatory minimum prison term of 15 years and a maximum term of 40 years.

What Distribution Means

The most relevant part of the federal statute defining distribution is:

The federal definition of Distribution is essentially any person who knowingly receives and then distributes child pornography using any means or facility of interstate commerce, including downloading any visual depiction through the internet.

In summary, any person who receives and then sends images of child pornography can be charged with distribution and face a mandatory minimum of five years in federal prison.

 Sexting: While the law does not explicitly include the act of sexting, the law, as written, does not expressly exclude it. However, most experts believe under the Federal Juvenile Delinquency Act, minors who take pornographic photos of themselves and then sext them to others would unlikely face federal criminal charges. The risk, however, is that they may be criminally liable under their state’s sexting laws

Consulting A Criminal Defense Lawyer

Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Attorney as soon as possible.