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Production Of Child Pornography In Virginia – Federal Law

PRODUCTION OF CHILD PORNOGRAPHY IN VIRGINIA – FEDERAL LAW

18 U.S.C. Section 2251 — SEXUAL EXPLOITATION OF CHILDREN—is commonly known as the federal law against the Production of child pornography.

MANDATORY MINIMUM SENTENCING:

The penalty for conviction of this offense is a mandatory minimum sentence of 15 to 30 years in prison. There is no Statute of Limitations on this crime.

DEFINITION:

Federal law (18 U.S.C. Section 2256) defines child pornography as “any visual depiction of sexually explicit conduct involving a minor (a person 18 years of age, or younger).” Images of child pornography are also referred to as child sexual abuse images. Federal law prohibits the production, distribution, importation, reception, or possession of any image of child pornography. A violation of federal child pornography law is a serious crime, and convicted offenders face severe mandatory statutory penalties.

Production Of Child Pornography In Virginia - Federal Law

Production Of Child Pornography In Virginia – Federal Law

CHILD PORNOGRAPHY AND THE INTERNET:

By the 1980’s, the production and trading of child pornography had nearly disappeared in the United States due to successful campaigns waged by law enforcement. Producing and trading child porn images became difficult and expensive. Anonymous distribution and receipt was not possible.

However, all of that changed in the 1990’s when the Internet became widely and cheaply available in the homes of most Americans. The Internet allowed individuals to easily create, access, and share photos, videos and images worldwide at the click of a button. In present day, child pornography images are readily available through virtually every Internet technology including websites, email, instant messaging, chat rooms, newsgroups, message boards, peer-to-peer networks, and social networking sites. It is relatively simple for individuals around the world to connect on networks and forums to share their interests, desires, in addition to selling, sharing, and trading of child porn images, all within the believed privacy and anonymity of their own homes.

FEDERAL LAW:

18 U.S.C. Section 2251 Sexual Exploitation of Children:

a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any 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, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits 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 shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

(c)
(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).

(2) The circumstance referred to in paragraph (1) is that—

(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or

(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail.

(d)
(1) Any person who, in a circumstance described in paragraph

(2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering—

(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or

(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct;
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that—

(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or

(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.

(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.

WHAT THIS MEANS:

Child pornography images are not protected under First Amendment rights. They are defined as “illegal contraband” under federal law.

Visual depictions include:

  • Photographs;
  • Videos;
  • Digital or computer generated images that are indistinguishable from an actual minor:
  • Images created, adapted, or modified, but appear to depict an identifiable, actual minor; and,
  • Undeveloped film, videotape, and electronically stored data that can be converted into a visual image of child pornography.

The legal definition of sexually explicit conduct does not require that an image actually show a minor engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is “sufficiently sexually suggestive”. Additionally, the age of consent for sexual activity under any State’s law is irrelevant. Under Federal Law, any depiction of a minor under 18 years of age and engaging in sexually explicit conduct is illegal.

Federal law (18 U.S.C. Sections 2251-2252A) prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law.

Federal jurisdiction comes into play if the child pornography offense occurred in interstate or foreign commerce. This includes using:

  1. The U.S. Mail or a common carrier to transport child pornography across state or international borders;
  2. The Internet to commit a child pornography violation.

Even if the child pornography image did not traveled across state or international borders, federal law may come into play if the computer used to download the image, or the CD or Flash Drive used to store the image, originated or previously traveled in interstate or foreign commerce. Essentially if the computer or storage drive traveled across State lines or international boundaries, Federal law can apply.

18 U.S.C. Section 2251A specifically prohibits any parent, legal guardian or other person in custody or control of a minor under the age of 18, to buy, sell, or transfer custody of that minor for purposes of producing child pornography.

Lastly, 18 U.S.C. Section 2260 prohibits any persons outside of the United States to knowingly produce, receive, transport, ship, or distribute child pornography with intent to import or transmit the visual depiction into the United States.

HOW CHILD PORNOGRAPHY IS TRACKED:

Internet Service Providers (ISPs), such as Google, Yahoo, AOL, etc., can be liable under federal law for websites that depict child pornography on their servers. 18 U.S.C. Section 2258A requires that an ISP notify the National Center for Missing & Exploited Children cyber tip line if it learns of a violation of federal child pornography laws. This includes the use of its server to commit a child pornography offense. If the ISP knowingly and willfully fails to report the apparent violation, it is subject to criminal penalties.

Once The National Center for Missing & Exploited Children receives notification from an ISP of a possible child pornography violation, it has use of a technology called PhotoDNA, which was donated to it by Microsoft. The basis for PhotoDNA is a type of technology called “robust hashing,” which calculates the particular characteristics of a given digital image, its digital fingerprint or “hash value”, to match it to other copies of that same image. Essentially, PhotoDNA allows a digital image that has been altered by resizing, digital editing, or resaving in a different format to be matched to the original image. This technology can pick out child pornography images very quickly and reliably. The National Center for Missing & Exploited Children then forwards its findings and report to law enforcement.

Just as technology has made it easier for people to access the illegal content, it also has made it easier for law enforcement officials to track those who view, download and share child pornography files. Law enforcement agencies around the country continue to aggressively pursue those in possession of child pornography. The use of the Internet to commit child pornography offenses has blurred traditional notions of jurisdiction. Law enforcement agencies have coordinated a local and national-level focus to help coordinate local, nationwide, and international investigations.

State and local High-Tech Investigative Units, also known as Internet Crimes Against Children Task Forces, have Officers who patrol cyberspace to track child pornography distributed over the internet. The Units are funded by grants from the U.S. Department of Justice. Additionally, the Federal Bureau of Investigation (FBI), The Department of Homeland Security’s Cyber Crimes Center, The U.S. Attorney´s Offices throughout the country, and the National Center for Missing & Exploited Children vigorously investigate and prosecute violators of Federal Child Pornography Laws.

Targeting of Peer-to-Peer Sites by Law Enforcement:

Peer-to-peer file-sharing network sites such as BitTorrent, LimeWire, GigaTribe, and others, are one of the primary places law enforcement officials target with their searches. Special software enables them to track users and images by unique identifiers. During an investigation, a law enforcement official will log on to a peer-to-peer site and use key words to search for child pornography. Once the officer gets a hit, he will download the images.

The officer will use special software, such as ” FairPlay” (which can monitor and map illicit file sharing activity on popular peer to peer networks, web sites, and chat rooms) or, another type, to determine the IP (Internet Protocol) address of the person who sent the file. This information can be used to find the name and physical address of the person who registered the IP address, who may or may not have been the person to share the illegal images.

No Violation of the Fourth Amendment:

On-line searches by law enforcement officials of peer-to-peer sites, do not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Generally, under the Fourth Amendment, law enforcement must have a valid warrant prior to conducting a search of a person or their private property. If they do not have a valid search warrant, then any evidence seized during the search is illegal and likely inadmissible at trial.

The U.S. Supreme Court held in Katz v. U.S. , 389 U.S. 347, (1967), that for something to be considered a search for Fourth Amendment purposes, the person must have a reasonable expectation of privacy in the place or thing to be searched. Whether the person has a reasonable expectation of privacy is both a subjective and objective question – the person must subjectively believe that the place is private and there must be an objective acceptance by society that this belief is reasonable.

While, in most circumstances, law enforcement would need a valid search warrant to seize a computer from a person’s private home, the federal courts have consistently and repeatedly held that police do not need a warrant to search publicly accessible files from a private computer on a peer-to-peer site. That is because no search occurs where police use peer-to-peer technologies or file-sharing software to peer into a computer to see what may be on there; when an individual is sharing the contents, or some of the contents of his computer with the world, he has given up his expectation of privacy.

Many computer users do not realize that everything they do while online can be traced by law enforcement officials with the appropriate software. Even images that users believe have been permanently erased from their computers can be found by forensic computer forensic experts.

PUNISHMENT:

Any violation of federal child pornography law is a serious crime, and convicted offenders face severe mandatory statutory penalties. For example, a first time offender convicted of producing child pornography under 18 U.S.C. Section 2251, will face fines and a statutory minimum of 15 years to 30 years in prison. The punishment for each crime can be enhanced from the minimum sentence for the number of pictures possessed by the defendant and other conduct

Convicted offenders may face harsher penalties if the offender has prior convictions or if the child pornography offense occurred in aggravated situations defined as (i) the images are violent, sadistic, or masochistic in nature, (ii) the minor was sexually abused, or (iii) the offender has prior convictions for child sexual exploitation. In these circumstances, a convicted offender may face up to life imprisonment.

It is important to note that an offender can be prosecuted under state child pornography laws in addition to, or instead of, federal law.

THE NECESSITY OF LEGAL ASSISTANCE:

With the extra attention and focus of the government on child pornography crimes, the role of an attorney is vital from the very beginning of a federal case.

Negotiations in a federal case must take place before a Defendant is indicted for a Federal Child Pornography crime. Once a defendant is indicted, it is much more difficult to deal with negotiating any federal criminal charges.

If the legal issues and sentencing guidelines are not initially addressed, it may be too late for the defendant to ask for leniency, or avoid the harsh consequences of the punishment for a child pornography crime.

An experienced attorney can also assist a defendant by working through the sentencing guidelines to reduce the potential punishment, and by assessing the possibility of getting the federal indictment dismissed.

It is clear that the consequences of a federal sex crime conviction are extremely serious. Have you have you been charged, or fear you could be charged with a federal child pornography crime in Virginia and need a lawyer to negotiate and defend you?

Are you concerned about the consequences of being charged in a Federal Sex crime in Virginia?

For a lot of our clients, being charged with a Federal Sex Crime in Virginia can result in the loss of their job, their security clearance or even their immigration status.
Don’t risk speaking with authorities or going to court without a lawyer, if you have been charged, or fear you may be charged, contact our law firm for help and speak with a lawyer today.

We have client meeting locations in Fairfax, Prince William County, Richmond, Loudon County, Virginia Beach, Fredericksburg, and Lynchburg.

We will do our absolute best to help you through this difficult and stressful time. Fortunately, we are experienced, tough, and highly-skilled sex crime lawyers.

Article contributed by Kimberly Bolinskey
Sris Law Group
1-434-509-4004

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

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