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The presumption of innocence is considered a cornerstone of the criminal justice system in the United States, yet many alleged sex offenders immediately feel as though they are instead presumed guilty and needing to prove their innocence when charged with any kind of offense related to child pornography. Both the state and the federal government impose strict penalties on people who are convicted of these types of offenses.
Any kind of child pornography charge can place an enormous strain on the personal and professional lives of an individual, even though many people are guilty of nothing more than opening emails or clicking links that contained offensive material. In January 2011, a 58-year-old Florida man was investigated for child pornography when it turned out that another individual downloaded 10 million files of child pornography from a boat in the nearby marina using the man’s unsecured router.
If you or a loved one is being investigated for child pornography in Miami-Dade County or any of the surrounding areas, contact Hubbs Law Firm at (305) 570-4802 for a free consultation with our Miami child pornography defense lawyers.
Florida Penalties for Child Pornography Charges
Florida Statute § 847.001(3) defines child pornography as “any image depicting a minor engaged in sexual conduct.” A minor is defined under Florida Statute § 847.001(8) as “any person under the age of 18 years.”
Florida Statute § 847.001(16) defines sexual conduct as being any of the following:
Actual or simulated sexual intercourse;
Deviate sexual intercourse;
Sexual bestiality;
Masturbation;
Sadomasochistic abuse;
Actual lewd exhibition of the genitals;
Actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or
Any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
Under state law in Florida, each photograph or image involved in a Florida child pornography case is treated as a separate offense.
The specific crimes alleged offenders may be charged with may include:
Sexual performance by a child, Florida Statute § 827.071 – It is a second-degree felony punishable by up to 15 years in prison and/or a fine of up to $10,000 for an alleged offender to, knowing the character and content thereof, employ, authorize, or induce a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consent to the participation by such child in a sexual performance; knowing the character and content thereof, produce, direct, or promote any performance which includes sexual conduct by a child less than 18 years of age; or possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child. It is a third-degree felony punishable by up to five years in prison and/or a fine of up to $5,000 for an alleged offender to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. It is important to note that possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote.
Computer pornography, Florida Statute § 847.0135 – It is a third-degree felony punishable by up to five years in prison and/or a fine of up to $5,000 for an alleged offender to knowingly use a computer online service, internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child to commit any illegal act described in chapter 794, chapter 800, or chapter 827 of the Florida Statutes, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; or solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827 of the Florida Statutes, or to otherwise engage in any sexual conduct. If an alleged offender misrepresents his or her age in any violation of this statute, the offense is a second-degree felony punishable by up to 15 years in prison and/or a fine of up to $10,000. Each separate use of a computer online service, internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.
Selling or buying of minors, Florida Statute § 847.0145 – It is a first-degree felony punishable by up to 30 years in prison and/or a fine of up to $10,000 for any parent, legal guardian, or other person having custody or control of a minor to sell or otherwise transfer custody or control of such minor, or offer to sell or otherwise transfer custody of such minor, either with knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct, or with intent to promote either the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct, or the rendering of assistance by the minor to any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.
Federal Child Pornography Charges
Because many cases of child pornography involve images sent and received through the internet, such transmissions can be legally interpreted as having crossed state lines and conduct in violation of the Commerce Clause of the United States Constitution. When this occurs, child pornography cases fall within federal jurisdiction.
Federal child pornography cases carry even steeper penalties than similar offenses tired in state courts. Some of the federal laws applicable to child pornography offenses include:
Obscene Visual Representations of the Sexual Abuse of Children, 18 U.S. Code § 1466A – An alleged offender can be sentenced to up to 10 years in prison and/or ordered to pay a fine of up to $250,000 for possessing a visual depiction of any kind that depicts a minor engaging in sexually explicit conduct. Alleged offenses involving minors less than 12 years of age are punishable by up to 20 years in prison and/or fines of up to $250,000. Second or subsequent offenses are punishable by mandatory minimum sentences of 10 years up to 20 years in prison and/or fines of up to $250,000. An alleged offender can be sentenced to a mandatory minimum of five years up to 20 years in prison and/or ordered to pay a fine of up to $250,000 for producing, distributing, receiving, or possessing with intent to distribute a visual depiction of any kind that depicts a minor engaging in sexually explicit conduct. Second or subsequent offenses are punishable by mandatory minimum sentences of 15 years up to 40 years in prison and/or fines of up to $250,000.
Sexual Exploitation of Children, 18 U.S. Code § 2251 – An alleged offender can be sentenced to a mandatory minimum of 15 years up to 30 years in prison and/or ordered to pay a fine of up to $250,000 for a first offense involving a production, attempt, or conspiracy to produce child pornography. Second offenses are punishable by mandatory minimum sentences of 25 years up to 50 years in prison and/or fines of up to $250,000. Third or subsequent offenses are punishable by mandatory minimum sentences of 35 years up to life in prison and/or fines of up to $250,000.
Selling or Buying of Children, 18 U.S. Code § 2251A – Any parent, legal guardian, or person having custody or control of a minor can be sentenced to a mandatory minimum of 25 years up to 50 years in prison and/or ordered to pay a fine of up to $250,000 for a first or second offense involving the knowing permission of such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct. Third or subsequent offenses are punishable by mandatory minimum sentences of 35 years up to life in prison and/or fines of up to $250,000.
Certain Activities Relating to Material Involving the Sexual Exploitation of Minors, 18 U.S. Code § 2252 – An alleged offender can be sentenced to up to 20 years in prison and/or ordered to pay a fine of up to $250,000 for a first offense involving the transport, shipment, receipt, or distribution of child pornography. Second or subsequent offenses are punishable by mandatory minimum sentences of 10 years up to 40 years in prison and/or fines of up to $250,000.
Certain Activities Relating to Material Constituting or Containing Child Pornography, 18 U.S. Code § 2252A – An alleged offender can be sentenced to up to 20 years in prison and/or ordered to pay a fine of up to $250,000 for a first offense involving the mailing, transport, shipment, receipt, distribution, or reproduction of child pornography. Second or subsequent offenses are punishable by mandatory minimum sentences of 10 years up to 40 years in prison and/or fines of up to $250,000.
Lawyer for Child Pornography Charges in Miami, FL
Were you arrested or do you believe that you might be under investigation for an alleged child pornography offense in South Florida? Do not say anything to authorities without legal representation. Contact Hubbs Law Firm as soon as possible for help protecting your rights.
Our founding attorney, E.J. Hubbs, is a seasoned Miami child pornography defense attorney who represents clients accused of sex crimes in Aventura, Homestead, Miami Gardens, Hialeah, Cutler Bay, and many surrounding towns, villages, and unincorporated areas in Miami-Dade County. He is Board Certified in Criminal Trial Law by the Florida Bar and can provide an honest and thorough evaluation of your case.
Call (305) 570-4802 to schedule a free, confidential consultation.
Additional Resources
Florida Department of Law Enforcement (FDLE) | Child Pornography – The FDLE is a state government agency that handles a wide variety of crimes and assists local law enforcement agencies with various offenses. On this section of its website, you can learn more about state laws relating to child pornography and find several helpful links. You can also learn what to do if you find a website that contains images of child pornography or receive child pornography by email or in any other manner.
Citizen's Guide to United States Federal Child Pornography and Exploitation Laws – Visit this section of the United States Department of Justice (DOJ) website to view summaries of federal laws pertaining to the Child Exploitation and Obscenity Section (CEOS) of the Criminal Division. You can find a citizen's guide to U.S. federal law on child pornography, as well as answers to frequently asked questions. Visitors can also learn how to report an incident involving the possession, distribution, receipt, or production of child pornography.
As professional Miami criminal defense attorneys, we take every case personally give every client the deliberate care it deserves. Our clients become part of our family and we fight relentlessly for their rights. Read more about us to find out how we can help you.
