In the effort to protect children, the law has become ever wider, thereby capturing people with no intent to deal in child pornography and images that stretch interpretation. Child pornography may be prosecuted in federal or Florida courts, and investigators at both levels employ numerous resources to find evidence of child pornography.
The police must investigate a suspect in order to build enough probable cause for the court to issue a search or arrest warrant. If you have been served with a search warrant, been arrested, or believe you are under investigation, it is never too early to reach out to an experienced sex crimes defense attorney for guidance.
Jacksonville Child Pornography Lawyer
William Roelke believes in your innocence and understands the difficulties that a highly controversial charge can create in your life. Attorney William Roelke will use his extensive experience to resolve the issue in a timely manner and with a favorable outcome. The issue of child pornography rests on years of federal and state case law as well as subjective interpretations of images. It takes a seasoned veteran of the court to build a compelling defense against zealous prosecutors.
Call William Roelke at (904) 354-0333 today to schedule a time to review your case if you are in Northeast Florida, including Duval County, St. Johns County, Clay County, Nassau County, and the surrounding areas. The meeting is free, confidential, and requires no obligations. It will be your first step to putting this ordeal behind you.
Information on Child Pornography Charges
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Florida Definition of Child Pornography
Child pornography, as defined by Fla. Stat. § 847.001(3) means any image depicting a minor engaged in sexual conduct. A minor is any person under the age of 18 at the time the image is captured. “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or 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. A mother breastfeeding is never considered sexual conduct.
Child erotica is not defined by Florida as child pornography. The term “child erotica” describes images that may be used for sexual gratification but do not fit within the explicit definition of child pornography. For example, child modeling websites may display fully clothed children that are accessed by adults to fulfill a sexual desire, but never cross the line into nudity or sexual conduct. Images interpreted as child erotica may be used as evidence against a defendant facing a charge (based on separate images) of child pornography.
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Federal Law for Sexually Explicit Content Featuring Minors
The federal government may indict a person for child pornography if they have used mail or email to transport child pornography across state and international lines, however, simple possession of child pornography may also result in federal charges.
The federal government uses the term “sexually explicit content” of a minor. Sexually explicit content is defined in 18 U.S. Code § 2256 as the actual, simulated, or a graphic representation of:
- Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
- Bestiality;
- Masturbation;
- Sadistic or masochistic abuse; or
- Lascivious exhibition of the genitals or pubic area of any person.
“Lascivious exhibition of the genitals or pubic area” does not necessarily mean nudity, and federal courts have deemed images sexually explicit even when the minor is clothed.
Lascivious is defined as tending to excite lust; lewd; indecent; obscene; sexual impurity; or tending to deprave the morals in respect to sexual relations. One method of interpreting whether an image crosses the line into sexually explicit content is by applying the “Dost Test,” formed in the ruling of United States v. Dost, 636 F. Supp. 828 (S.D.Cal. 1986). Each of the elements of the “Dost Test” do not have to be met to find an image sexually explicit, but gives clarity to how the court may rule. To interpret an image, one will question:
- Whether the focal point of the visual depiction is on the child’s genitalia or pubic area.
- Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity.
- Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.
- Whether the child is fully or partially clothed, or nude.
- Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
- Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
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State Penalties for Possession, Promotion or Distribution
A person found to manufacture or promote child pornography, including by supplying an underage person, would be sentenced to a felony of the second degree.
Possession of pornographic material of a minor with the intent to promote it is also a felony of the second degree. The court will assume that the individual had intent to promote if there are three or more copies of the pornographic material.
Possession of or viewing child pornography is a felony of the third degree.
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Punishments for Child Porn Charges in Federal Court
A person convicted of transporting or shipping 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 mails, any visual depiction of a minor engaged in sexually explicit conduct will be sentenced to no less than five years in federal prison with a maximum sentence of 20 years. A second conviction for transmitting sexually explicit material carried a sentence of 15 to 40 years in prison.
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Criminal Defense against Child Pornography Charges in Jacksonville
William Roelke will aggressively fight for your defense, showing there was no knowledge of a pornographic file or that the image is being grossly misinterpreted. Our clients will not be railroaded by the justice system, but will instead have a seasoned advocate in both federal and Florida courts.
Call us today at (904) 354-0333 to schedule a free consultation to if you facing a child pornography indictment in Jacksonville, Atlantic Beach, St. Augustine Beach, Orange Park, Green Cove, Springs, Keystone Heights, Penney Farms, or the surrounding areas in Northeast Florida.