Under California law, you could be guilty of child pornography if you possess or distribute any data, videos, computer files, or images showing a person less than 18 years engaging in sexual activity. The sexual act could be simulated or real, showing masturbation or exhibiting the private parts of a minor. Sexual activities could include oral copulation, sexual intercourse, or masturbation. Child pornography is illegal, and you should not send, advertise, produce, transport, or possess child pornography materials. When you violate child pornography law in California, you could face stiff penalties. If you are accused of child pornography, the Orange County Criminal Defense Attorney Law Firm can help you fight the accusations.
California’s Penal Code 311 on Child Pornography
Under California law PC 311.1, you could be guilty of child pornography if you record or send an image of a minor less than 18 years performing sex acts. You could violate this statute if you knowingly cause a person less than 18 years to feature in sexual materials. Child pornography is a wobbler offense under PC 311.1. This means you could be guilty of a misdemeanor or felony, depending on the facts of the case. You will pay a fine of not more than $1,000, or serve one-year jail time in county jail if you get a misdemeanor conviction under PC 311.1.
You will pay a fine of not more than $10,000, or serve a jail term of 3 years in state prison should you be convicted of a felony. The court, however, could impose both the fine and jail time for child pornography crimes in California.
For you to get child pornography charges according to California PC 311.1, you must:
- Exhibit, exchange, share, distribute, or sell pornographic material depicting a minor.
- You must have known that the pornographic material exposes a minor less than 18 years in a sexual situation.
- Make or send a sexual video or image of o a minor less than 18 years.
However, there are exceptions to this law. First, sexual acts between married people do not qualify as child pornography. It would not be child pornography for a 19-year old man and his 17-year old wife to film their sexual activities.
Other California’s Statutes on Child Pornography
There are additional subsections under California laws that outline the crime of child pornography. They include PC 311.3, PC 311.4, PC 311.10, and PC 311.11. It is an offense under PC 311.4 to hire, coerce, employ, persuade, or use a child to engage in child pornography production. Under California law PC 311.3, you should not intentionally exchange, print, duplicate, or develop child pornography. Under PC 311.10 of the California law, if you intentionally advertise obscene child pornographic materials for sale, you will be at fault. You will also violate PC 311.11 if you deliberately control or possess child pornography produced by a minor less than 18 years.
Elements of Child Pornography in California
For the prosecutor to accuse you of distributing or producing child pornography, she/he must prove several elements of the crime. The prosecutor must provide different pieces of evidence to accuse you of the various forms of child pornography. It must be apparent beyond a reasonable doubt that you sent or bought the child pornographic materials in California. The prosecutor could also prove that you copied, published, prepared, developed, or possessed child pornographic materials.
The prosecutor has to prove that the material you distributed or possessed portrayed child pornography. If the content portrayed people who are above 18 years, it can't qualify as child pornography. You must have violated the California child pornography law knowingly, and the materials must have been obscene.
The California law defines child pornography as any content or matter that shows sexual conduct by a person less than 18 years. The pornographic material may involve items like films, photographs, videotapes, slides, or computer-generated equipment. The content may show a child engaging in sexual activities like masturbation, oral intercourse, oral copulation, and sexual intercourse.
There should be enough evidence that you intended to show, or exchange the pornographic materials. To prove that you committed sexual exploitation to a child under California PC 311.3, the prosecutor must prove that you knew that the material portrayed a minor engaging in sexual activity. You must have intentionally duplicated, exchanged, printed, or developed the pornographic materials.
According to PC 311.4, to show that you are guilty of recruiting a minor to child pornography, the prosecutor must show certain facts. You must be guilty of using, recruiting, hiring, or coercing a minor to perform pornographic works. You might be guilty even if you did not hire or recruit a child to perform pornography as long as you tried to do so.
Under California child pornographic law PC 311.10, the prosecutor has to prove certain facts to show that you are liable. It must be apparent that you were involved in the advertisement or promotion of child pornography. You must have been aware that the person depicted in your marketing materials was less than 18 years.
Under PC 311.11, if the prosecutor accuses you of possessing child pornography materials, he/she must show the evidence that you possessed or controlled child pornographic materials. You must have known that the individual depicted in pornographic materials was less than 18 years.
Obscene Materials
Under California law, you cannot face child pornography charges unless the pornographic content in question is obscene. Pornographic material is obscene if it shows or offensively describes sexual conduct. It should be evident that a reasonable person would conclude that the material lacks serious political, scientific, or artistic value. It also means that an average adult person would consider the material appealing to a morbid or shameful interest commonly known as prurient interest. If an individual has a prurient interest, it means that the individual has a morbid or shameful interest in sexual activities like nudity, sex, or erection.
According to the law, it is important to note that nudity does not make a material obscene. For a material to be obscene, it must show sexual acts and meet other conditions or requirements of obscenity. In addition, you can’t be guilty under child pornography law, if you possess obscene materials for your personal use without distributing them. The law may not consider a material obscene if it only shows sexual conduct between spouses.
A film may not qualify as child pornography if it has scenes of romance among teenagers. As long as the film concentrates on teenagers' psychological and emotional development, it may not be child pornography. The film may have simulated sex between the teenage performers. However, as long as there are no cases of obscenity, the film is not pornography. As long as the film contains artistic values and does not have morbid material, it may not be child pornography.
You will only be guilty under California child pornography law if it is evident that you knew your deeds when committing the crime. This means that you acted intentionally or with full knowledge. To act intentionally implies that you were aware of the type of content you transported, advertised, or possessed. It also means that you had full knowledge that the pornographic content showed a child less than 18 years performing sexual acts.
Consequences of Child Pornography in California
Under California law, child pornography may attract charges of misdemeanor or felony. The prosecutor has the freedom to charge the crime as a misdemeanor or a felony. The prosecutor considers various factors when charging the crime, including the criminal history of the defendant and the facts surrounding it. If the prosecutor charges the crime of child pornography as a misdemeanor, the result is jail time of one year in a California county jail. The court may also find you between $1,000 and $2,500. A felony conviction will have longer imprisonment of 3 years in state prison and a higher penalty.
Registration as a Sex Offender
According to the California law, after a conviction of child pornography, you have to register as a sex offender. For this conviction, you may face lifetime registration as a sex offender. However, the registration requirements may change according to the California senate Bill SB 384. Under this bill, sex offender registration will fall under three tiers. The first tier comprises of sex registration for a minimum of ten years. The second tier entails registering as a sex offender for a minimum of twenty years. The third tier requires registering as a sex offender for a lifetime. The victims of misdemeanor child pornography may register as a sex offender for ten years instead of lifetime registration, once the bill takes effect.
Immigration Consequences
If you are a non-citizen in the United States and commit the child pornography crime, you may be deported. The court may also consider you inadmissible into the United States. This means that you cannot gain citizenship in the United States using various ways like naturalization. Inadmissible and deportable crimes in California include crimes of moral turpitude. Child pornography qualifies as moral turpitude, depending on the circumstances surrounding the crime.
Expungement of the Offense
Like the other criminal cases in California, you may apply an expungement of a child pornography offense from your criminal record. To get an expungement, you may have to fulfill various conditions. First, you would have to complete serving the proposed probation fully. You will also have to complete jail time fully if jail time is applicable. You may still have your criminal record expunged even if you violate the terms of your probation. However, this will depend on the discretion of the judge.
Under California’s PC 1203.4, an expungement releases you from all penalties that result from a child pornography conviction. You will also not face discrimination in the future because of your conviction, either from your employer, based on expunged criminal records.
Common Legal Defenses
If you are guilty of child pornography crime, the penalties can be detrimental. You should seek the assistance of an experienced criminal attorney who can help develop a proper defense. Some of the defenses that your attorney can adopt are:
The Victim is not a Minor
You cannot be guilty of child pornography under California law if the victim does not meet the required age criteria for a minor. For child pornography charges to apply, the defendant should commit the crime against a child. Typically, a child is any person who has not attained the age of 18 years. Some statutes define a minor as a person less than 16 years, 14 years, or ten years. The definition of a child will depend on the particular law you violate. Your attorney can come up with a defense that revolves around the age of the victim. Your attorney can outline that the victim did not meet the age criteria for a particular statute.
False Accusations
When a child is a victim of child pornography, he/she may be confused. The child may be confused about the identity of the perpetrator of the crime because of being forced to participate in a pornographic film. This scenario is common if the defendant is unknown to the child, and if the act took place in an unfamiliar place. The child may also be young and unable to identify the perpetrator correctly. These circumstances may lead to false accusations.
A child may accuse you of forcing him/her to participate in pornographic acts if he/she has an ulterior motive. Another adult may also manipulate the child and direct the child to accuse of child pornography. The reasoning behind the acts of the child does not matter. As long as you did not commit the crime, you can work with your attorney to prove that you are a victim of false accusations.
You Believed the Minor Was Over 18 Years
California child pornography crimes require the perpetrator to have known that the victim was a child. You might not face charges under California law if you thought that the victim was above 18 years and had no idea that you were dealing with a child.
In some instances, this defense may not apply. You cannot use this defense if you possess or distribute pornographic material of a child below 14 years or who is more than ten years younger than you are. This defense may apply if the victim made a statement outlining that he/she was above 18 years at the time you developed the pornographic film. The victim's appearance, including the types of clothes the victim wore, may determine whether this defense applies. For instance, if you met a victim in a club, you may have thought the victim is above 18 years because many clubs do not allow minors without IDs to enter.
You Did Not Intend to Violate the Law
You are not guilty of child pornography if the material you produced has a legitimate purpose, such as educational, medical, or scientific activities. If you make an educational video acted by teenagers about the effects of early sex in children, you are not guilty of child pornography. You will not be liable even if the facts contained simulated sexual conduct; the video is not child pornography because it serves an educational purpose. The defendant's intent while committing child pornography is important.
Coerced Confession
You could have confessed to child pornography due to overbearing police conduct. You could fight the charges by asserting that if it were not for the outrageous police conduct, you would not have confessed to child pornography. If you feel that the police coerced you to confess to a crime, you could fight the charges with your attorney's assistance. The police might also make you believe that you will not go to jail if you confess to a crime. You should never have to face the consequences of an offense that you did not commit.
Lack of Knowledge
Lack of knowledge is also a valid defense for California child pornography cases. For the charges to hold, the prosecutor has to prove beyond any doubt that you acted intentionally. This implies that you should have been fully aware of your actions when you committed the offense. You may assert that you were not aware that the individual featuring in a pornographic film was a child. You may also state that you downloaded videos on your computer without knowing that they had pornographic clips.
You are a Victim of Unlawful Search and Seizure
If you feel that you are a victim of illegal search or seizure, you can use the fact to seek defense. According to the fourth amendment to the US constitution, it is a violation of legal rights for law enforcement officers to subject you to illegal search or seizure. With the help of an attorney, you can prove that the police obtained the evidence illegally. The judge may decide to exclude illegally acquired evidence from the case. This would lead to a reduction of your criminal charges. If the police plan to search your premise, they would require a search warrant first. If the police search with a defective warrant, you may stage a defense.
Related Offenses
Several crimes under California law are almost the same as the crime of child pornography. You might face charges for the related crimes alongside child pornography charges or instead of child pornography charges. The related crimes include:
Revenge Porn
A defendant can commit revenge porn using images of an adult or a child. The California PC 647j4 outlines the crime of revenge porn. The crime involves distributing the sexual contents of another person with the intent to inflict emotional distress on the person. If you commit revenge porn using images of a child, then you may face charges under California child pornography law. You may have obtained the said images with the consent of the victim, promising the victim to keep the images private. If you distribute the images, knowing that doing so will cause emotional distress on the victim, you will be guilty under PC 647j4.
Statutory Rape
Under the California PC 261.5, you could be guilty of engaging in a sexual act with a child less than 18 years. This offense involves sexual intercourse with a minor, unlike other child pornography offenses. The crime of statutory rape is a wobbler under California law. You may face misdemeanor charges if you play sex with a child within three years of your age. You could get a jail time of one year in a California county jail and pay a fine of $1,000.
Lewd Acts With a Minor
Under California law, it is an offense to engage in sexual activities with a minor who is ten years younger than you. The penalties will depend on the age difference between the victim and the defendant. Still, under California PC 288, it is a crime to engage in sexual acts with a person less than 14 years. According to the law, the crime of lewd acts with a minor is also a wobbler. The prosecutor may assign felony or misdemeanor charges. This offense is almost similar to the child pornography offense because both crimes revolve around sexual conduct between adults and minors.
You serve time in California state prison if you are guilty of the offense of lewd acts with a minor as a felony. You may face imprisonment of three years, eight years, or six years. The court may also fine you not more than $10,000, or in some instances, you may be imprisoned and, at the same time, pay the fine. For you to face lewd acts with a minor charge, you do not need to have engaged in sexual intercourse with the minor. Once you touch the minor in a manner likely to arouse him/her, you may face charges.
Find a Criminal Defense Attorney Near Me
Do not give up or accept fault when the prosecutor accuses you of child pornography. The Orange County Criminal Defense Attorney Law Firm can assist. We will evaluate your case and advise you on the way forward. We will help you come up with convincing legal defenses to help you fight the charges. Contact us at 714-740-7848 and speak to one of our attorneys.