Federal Sex Crimes
What Are Federal Sex Crimes?
Most federal sex crime laws deal with the trafficking, possession, receipt, and transfer of child pornography through the Internet and the computer.
The Child Pornography Prevention Act was enacted in 1996. This act criminalizes all “virtual” child pornography images that have been altered by a computer and that are basically indistinguishable from actual photographs of minors in explicit poses. This act also prohibits depictions of sex or suggestive situations by persons who appear to be below the age of eighteen.
Other statutory provisions which relate to child pornography are: 18 U.S.C. § 1470 which criminalizes the transfer of obscene materials to minors; 18 U.S.C. § 2251 which criminalizes the sexual exploitation of children; 18 U.S.C. § 2252 which criminalizes certain activities relating to material involving the sexual exploitation of minors; 18 U.S.C. § 2252A which criminalizes certain activities relating to material constituting or containing child pornography.
In 2003, Congress passed the Prosecutorial Remedies and other Tools to End the Exploitation of Children Today Act. This Act led to the creation of mandatory minimum sentences for child pornography offenses. After the law was passed, the United States Sentencing Commission added sentence enhancements and increased the penalties for possession of child pornography. The penalty for a first-time child pornography offender convicted of possession is up to 10 years in prison. The maximum penalty is 20 years in prison if the offender has a prior sex offense conviction. The penalty for child pornography offenders convicted of transporting or distributing child pornography is up to 20 years in prison for a first offense. The maximum penalty for this offense is 40 years in prison if the offender has a prior sex offense conviction.
Defenses in Child Pornography Cases
- Accident – This defense may be used when someone charged with child pornography inadvertently downloaded images on their computer. In most child pornography cases, the government will closely scrutinize whether a defendant is a collector of child pornography and has extensive computer files with child pornography. When the defendant in a child pornography case is found to have an extensive index of material (which contains divisions according to age and gender), they will probably be considered a collector of child pornography. If the government considers a defendant a “collector” of child pornography, they will generally not be able to use the defense of accident.
- Number of Depictions – A defendant in a possession of child pornography case may be able to argue that they have possessed less than three pieces of material containing visual depictions and that they promptly and in good faith, and without retaining or allowing any other person (other than a law enforcement agency) to access any image or copy any image, took reasonable steps to destroy each image or reported the material to a law enforcement agency and allowed the agency access to each image.
- Subject was an Adult – A defendant in a child pornography case may use the defense that the alleged child pornography was produced using an actual person who was an adult at the time the material was produced and that they did not advertise, promote, present, describe or distribute the material in such a manner as to convey the impression that the material contains a visual depiction of a minor engaging in explicit conduct