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Columbus Child Pornography Lawyer

When you’re online, you are a mouse-click away from a nightmare. While downloading materials, documents, websites, or other digitally transmitted information during what you sincerely believe to be innocent “web surfing” or file sharing, you can unwittingly encounter illegal sexually explicit depictions of minors (i.e., children under the age of 18 years old). Without your knowledge or awareness, such materials remain on your computer and are shared through file sharing or Wi-Fi networks. Instantly, in the blink of an eye, you can be targeted for possession and distribution of child pornography (also known as Pandering Obscenity Involving a Minor (Ohio Revised Code § 2907.321).

Imagine this scenario:

A cybercrimes task force, armed with a search warrant, pounds at the door of your home or business, enters the dwelling or office, and tells you not to move, while law enforcement officers seize and forensically mine data from your electronic devices to determine the types of digital files and folders that you have downloaded. If this has happened to you, you have been targeted as a perpetrator of child pornography, a highly stigmatized criminal offense, carrying potentially life-altering penalties that will indelibly damage your reputation.

Pornography is the most Googled search term on the internet, and while explicit adult depictions are generally not deemed to be illegal, engaging in any form of child pornography will render you a social pariah, having to endure lasting adverse repercussions on your life. Due to the serious nature of the offense, you may be unable to secure employment, exercise your rights as a citizen, pursue an education, or hold a job. In addition, the lasting social stigma will brand you as an outcast — an exploiter of the innocent — and subject you to extremely severe penalties and harsh sentences.

Given the stigmas attending child pornography crimes, the penalties associated with such offenses are significantly more severe than those imposed for actual child abuse. Society views these crimes as so heinous as to warrant the harshest consequences, placing the accused’s reputation in permanent jeopardy. Hence, the propensity of federal and state authorities to engage in constant online monitoring and surveillance.

For the above-mentioned reasons, you require the intervention of an experienced Columbus child pornography lawyer who understands the intricacies of your case and can negotiate with authorities, when appropriate, and fight to protect and preserve your reputation. We are compassionate practitioners who will work tirelessly on your behalf, crafting every element of your defense to suit your individual circumstances. It is important that you should not undertake your defense alone, as you cannot anticipate the intricacies and ramifications of crafting that defense. Singlehandedly taking charge of your case can yield dire consequences, such as the imposition of severe penalties.

Plan Your Strategic Defense to a Columbus Child Pornography Charge

Remember that time is of the essence and planning a strategic defense can be the difference between a harsh prison sentence and going home.

Due to the complex nature of child pornography cases, defendants who are targeted and charged with the serious crime of child pornography must not unilaterally undertake their defense. Highly experienced sex crime attorneys at Joslyn Law Firm are available 24/7 to listen to your individual story, respect your right to be represented and heard, and vigorously advocate on your behalf to foster the best outcome under the circumstances. Our non-judgmental approach focuses not upon “guilt” or “innocence” but rather, on the question, “What can we do to facilitate the best possible outcome for you?”

Attorneys at Joslyn Law Firm have also served as prosecutors and in law enforcement. Therefore, we are keenly aware of every facet of your case, how to assess and analyze the legal options available to you and build a cogent defense on your behalf. You are not alone. We have handled countless cases involving the crime of child pornography, and we will do everything in our power to achieve the best outcome under the circumstances.

We treat every individual with dignity and are eager to identify mitigating factors that could reduce your sentence, preserve your reputation and quality of life. We understand the significance of preserving individual freedoms within the bounds of the law while deferring to the rule of law and the sanctity of all life. Call us today at (614) 444-1900.

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Ohio Child Pornography Information Center

1. Child Pornography Overview
2. The Cultural Stigma of Child Pornography Charges
3. Specialized Prosecution in Child Pornography Cases
4. Child Pornography Investigations
5. State and Federal Child Pornography Charges
6. Ohio Pandering in the Obscenities of a Minor Statute
7. Ohio Elements of Pandering of Obscenities charges
8. Federal Child Pornography Statute (18 U.S.C. § 2251)
9. Federal Elements of Child Pornography Charges
10. Children Charged with Child Pornography (Sexting)
11. Penalties for Child Pornography Convictions
12. Collateral Consequences of a Child Pornography Conviction
13. Child Pornography Defenses
14. Evidence in Child Pornography Cases
15. Experts in Child Pornography Cases
16. Child Pornography Defense Resources
17. Notable Cases Regarding Child Pornography
18. Child Pornography News and Articles
19. Common Questions and Answers in Child Pornography Cases
20. Start Working With Our Columbus Child Pornography Lawyer Today

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Child Pornography Overview

Historical Background

Distribution, possession, and reception of child pornography has been an issue of congressional concern since the late 1970s with the promulgation of the Protection of Children Against Sexual Exploitation Act of 1977 (Protection of Children Against Sexual Exploitation Act, Pub. L. No. 95–225, 92 Stat. 7 § 2 (1978) (codified at 34 18 U.S.C. §§ 2251-2253).

By the mid-1980s, Congress enacted stringent laws not only targeting large-scale distributors, but also producers and traffickers of child pornography. Congress found that all forms of obscene depictions involving minors caused serious physiological, emotional, and psychological harm and concluded that severe punishment for the sale and distribution of such images would reduce incentives to commit these offenses.

Subsequent enactments protected victims and increased mandatory minimum to provide redress for victims. Therefore, the commission of such crimes reached a low ebb. In contrast to the present day, the opportunity of pedophiles to interact was drastically reduced, and with the enactment of initial sentencing guidelines in 1988, Congress effectively halted the purchase, distribution and trafficking of illicit images involving minors.

Over time, the law has become stricter as the stigma of child pornography crimes and the outcry against them has emerged to the forefront of society. In the Supreme Court Decision of Osborne v. Ohio, 495 U.S. 103 (1990), the Court held that the First Amendment protection of free speech did not apply to the possession of obscene materials involving a minor and emphasized the damage to children whose images were used, as well as to children who were potentially susceptible to abuse by offenders who possessed that material.

In 1996, the Child Pornography Prevention Act was passed, designed to prohibit internet child pornography, including virtual child pornography. The PROTECT Act of 2003 (“Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”) aimed to prevent child exploitation and promoted the investigation and prosecution of violent crimes against children.

Today, the crime of indecent depictions of minors is definitively recognized as egregious and morally reprehensible and produces public outcry, due to the crimes’ lasting injurious effects on children. Correspondingly, mandatory minimums under the sentencing guidelines have increased, along with severe, life-altering punishments, including irreparable damage to the offender’s reputation.

Internet Proliferation

With the advent of advanced digital technology and the internet, the crime of child pornography has tragically increased. With the click of a mouse, cyberspace has become a breeding ground for nefarious sexual exploitation of minors in various ways. including, but not limited to, the following: social media, instant messaging, emails, newsfeeds, news groups, and peer-to-peer networking that enable the perpetrators to distribute, trade, share, receive, and possess the illegal material. These types of exchanges have desensitized offenders to the enormous physiological, emotional, and psychological harm resulting from such activity.

Unfortunately, due to the accessibility and widespread nature of internet communications, child pornography is one of the fastest-growing crimes in the United States today, with a 2,500 percent increase in arrests over the past decade, according to the FBI.

Child pornography is censored not only in the United States, but in most jurisdictions of the world. As of 2008, 94 of 187Interpol member states enacted laws specifically addressing the crime of child pornography, and 58 of those states criminalized possession without intent to distribute. In nearly every Western nation, both distribution and possession are criminalized offenses. A vast network is underway to globalize the criminalization of child pornography, including the United Nations and the European Commission (“Child Pornography.” Wikipedia. N.p., n.d. Web. 1 May 2018).

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The Cultural Stigma of Child Pornography Charges

The cultural stigma involved in the commission of child pornography offenses cannot be over-emphasized. In fact, public outrage over the viewing, possession and distribution of such materials gives rise to harsher sentences than direct acts of child abuse.

The truth is that you can be a law abiding citizen, sitting in your room, downloading harmless music or video files through a file-sharing program over a WIFI connection, and unknowingly possess and distribute child pornography, simply by saving the folders to your desktop.

The recent proliferation of surveillance and monitoring techniques subjects defendants to constant scrutiny by law enforcement and a justice system bent on conviction, almost irrespective of the circumstances. That is, if the illegal material is found on the defendant’s computer, a presumption of guilt arises, due to the heinous nature of the crime and the public sentiment attending the commission of child pornography offenses.

More than anyone charged with any other criminal offense, individuals suspected of and charged with the crime of child pornography need our immediate intervention. Why? Because society considers child pornography to be so egregious, that individuals charged with such offenses are scorned even prior to the presentation of evidence or exposure to the circumstances surrounding each particular case. Such fact presents an additional hurdle that does not exist in other cases. For these reasons, if you have been targeted as a child pornography offender, you require the intervention of an experienced Ohio criminal defense attorney, who understands your circumstances. The Joslyn Law Firm will build an artful defense to foster the best possible outcome in your situation.

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Specialized Prosecution in Child Pornography Cases

As mentioned, child pornography cases are being pursued with particular intensity. Even the slightest amount of evidence will compel a defendant to be charged. Some counties (including Franklin County) have child pornography prosecution teams dedicated to surveilling and pursuing child pornography in Columbus, Ohio.

The most salient reason for this vigorous pursuit is the involvement of children and a desire to protect them from the harrowing, enduring the physical, psychological, and emotional effects of the crime.

Another purpose is to preserve and protect their innocence and vulnerability. Children’s mindsets are not yet attuned to subject matter that should only remain only within the province of adult awareness. A third reason is to deter the escalation of conduct that exploits children, and to that end, impose serious penalties to curtail the criminalized behavior.

Special prosecutors are often assigned to handle child pornography cases involving repeat offenders and heinous acts against high-risk victims (e.g., those with diminished mental or physical capacity). The Franklin County Sheriff’s Department, the United States Attorneys office and the Ohio CAC also offer a child pornography unit which provides education, counseling, support, crisis intervention, and general assistance to children who have been victimized by child pornography crimes. In addition, the unit has courtroom advocates who work in tandem with community liaisons to provide a variety of services to victims of child pornography, along with a wavering witness, who is encouraged to appeal and testify at trial.

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Child Pornography Investigations

What To Expect

Those who are suspected of committing child pornography crimes will be subjected to search and seizure by law enforcement, either in their home, business, or other venue where the illegal material may be situated. Law enforcement can only enter a dwelling with a valid search warrant, particularizing the locations to be searched and the items to be seized, signed by a judge. The search must be “reasonable” (that is, the warrant must reflect the scope of the search). If the search and seizure occurs outside the particularized terms of the warrant, all evidence that derives from that search will be deemed to be “fruit of the poisonous tree,” and therefore, inadmissible against the defendant, should the case proceed to trial.

All seized evidence that incriminates the suspect will lead to arrest.

If you believe that you have been subjected to a search and seizure, you require competent legal counsel to evaluate the reasonableness of the search and to craft a viable defense to save your reputation and facilitate your reintegration into society as soon as possible under the circumstances.

How Do the Authorities Target People for Investigation?

Federal and state authorities have various means of targeting people suspected of possessing, disseminating, selling, or otherwise distributing child pornography. They do so either through tips from people in the community or word of mouth, from an Internet Service Provider (ISP) or by pervasive independent monitoring /surveillance of the Internet for potential offenders. Law enforcement monitors web sites, chat rooms, and message boards for potential offenders, often posing as young children to “catch” the offenders in the act of engaging in the crime or other similar activities.

Whom Do the Local Police Investigate?

The local police typically investigate people who visit known websites that law enforcement monitors. These sites are regular mediums that commonly distribute child pornography (e.g., many file-sharing programs and other chat websites).

Typically, local law enforcement investigates one individual or two or more persons acting in concert within the same area who are deemed to be suspicious of engaging in the crime of child pornography.

When Do Federal Authorities Investigate?

There are many federal and state law enforcement bodies that act either independently or collectively to weed out child pornography offenders. Examples of federal investigative authorities include the FBI, the Department of Homeland Security, the Internet Crimes Against Children Task Force (“the ICAC,” created by the Department of Justice and the Office of Juvenile Protection and Delinquency Prevention) and the United States Postal Inspection Service.

How Are the FBI and Other Federal Agencies Dealing with the Crime of Child Pornography?

The FBI, Homeland Security, and U.S. Immigration of Customs Enforcement have made child pornography a primary focus of attention and have publicly declared it to be one of the fastest growing crimes in the United States. Correspondingly, the resources required to investigate such cases continue to grow, including aggressive “peer-to-peer” detection techniques and suspicious “honey-hole” operations. The FBI has come under intense scrutiny for allowing the continued operation of web sites over which it has seized control for the purpose of locating offenders who attempt to access child pornography sites. Law enforcement also engages in sting operations, where officers pose as underage individuals to ensnare perpetrators intent on committing child pornography crimes. Some officials also resort to text communications, designed to lure potential offenders to respond to illicit materials and communications.

The National Center for Missing and Exploited Children (NCMEC) has reported that there are no less than 50,000 people engaged in the “trading of illegal images” of children and the organization has collected more than 100 million images and videos of suspected child abuse cases. The NCMEC reports that 40 percent of all such cases stem from parental abuse, and 65 percent of all child pornography produced in the United States is generated by parents or family friends.

Activities Taking Place In Interstate Commerce

If the case is complex or involves activities that cross state lines and implicate multiple defendants, state law enforcement may contact federal authorities, who may take over the case and work in concert with the local police.

The FBI and the Department of Homeland Security deal extensively with offenses that are nationally or internationally focused, such as “rings” that disseminate child pornography across state lines or from overseas. These types of cases are usually very intricate and involve multiple suspects, large volumes of material, and various types of illegal conduct.

How Does a Suspect Know that an Investigation is Taking Place?

Given the complexities of Internet technology, it is possible that a suspect may be oblivious to an investigation until law enforcement shows up at the home or business with a search warrant. If this occurs, let the federal or state officers in and allow them to conduct a search. You have the right to call a criminal defense attorney, if you wish.

If the police conduct a Search, DO NOT SAY ANYTHING while the search is in progress. Rather, you should call your Columbus Ohio Criminal Defense Attorney immediately. The Joslyn Law Firm is on hand to take your call 24 hours a day, 7 days a week.

Deleting Files Does Not Eliminate Incriminating Evidence

Many people erroneously believe that deleting files will effectively wipe incriminating material — or any files, for that matter — off of their computer, but that is not the case. Files are not automatically obliterated simply by deleting them, and when the officers seize the computer for forensic analysis, the deleted files will be found in the computer’s hidden space.

Can Your Criminal Defense Attorney Prevent Charges from Being Filed?

If the material in question is minimal or benign, there may be leeway to avoid the filing of charges altogether. However, if charges are filed, we will negotiate with the prosecutor and ensure that your case is handled at the state level, if possible. We will also work to minimize media involvement. All of this work is accomplished by attorneys who understand the intricacies of child pornography cases, acting behind the scenes before charges are filed.

Resources Dedicated to Investigations and Prosecutions

Given the urgency of protecting children, state and federal law enforcement agencies have allocated massive resources to identify those who possess obscene materials involving minors and aggressively locating and apprehending those involved in the distribution and production of such illegal material.

Investigations of child pornography typically occur when a state or federal law enforcement officer or the two of such individuals, acting together, search a person’s home after obtaining information, via the individual’s Internet IP address, that places the individual under a cloud of suspicion. This triggers an investigation into the possibility that the individual has engaged in the possession and/or distribution of child pornography through Internet file sharing programs or over a WIFI network. The officer enters the individual’s home or business dwelling with a search warrant, without placing the individual under arrest, and the officer inquires whether or not the individual has engaged in the alleged criminal activity.

Although it is never advisable to answer questions without a criminal defense attorney on hand, law enforcement officers are often able to elicit scathing admissions.

How can Joslyn Law Firm Assist at the Investigation Stage?

We immediately reach out to state or federal investigators, and we begin a cordial, open dialogue to determine whether charges are appropriate, to avoid arrest or incarceration while the case is pending, and to discuss potential resolutions. Simultaneously, we privately advise clients on steps that they can take during the investigation stage, search and seizure issues, and possible affirmative and mitigation defenses to positively influence outcome. Significantly, we proceed with the charge as a summons instead of a warrant to avert the typical jail process.

At this earliest possible point, you should hire a criminal defense attorney, experienced in the issues at hand. The Joslyn Law Firm will intervene at the outset to effectuate a resolution of your case as soon as possible, under the circumstances. Our highly experienced attorneys are keenly aware of the nuances of cases such as yours and have worked in law enforcement and as prosecutors themselves. Therefore, they have an intrinsic understanding of how the justice system works and can readily craft your defense based on your unique situation. While it is true that there is nothing new under the sun and your attorneys have handled countless child pornography cases, we look at individuals, not statistics.

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State and Federal Child Pornography Charges

As mentioned earlier, even the slightest amount of evidence will compel a defendant to be charged. Some counties (including Franklin County) have child pornography prosecution teams dedicated to surveilling and pursuing child pornography in Columbus, Ohio.

What Determines Whether Cases are Tried In State or Federal Court?

There isn’t any hard and fast rule as to which court — state or federal — will assume jurisdiction over a child pornography case. However, as a general practice, if the FBI or Homeland Security assumes the investigation, the case will be tried in federal court. Otherwise, the case will go to state court. In many instances, the state court will, in all events, take the case, even if the aforementioned agency/department is involved.

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Ohio Pandering in the Obscenities of a Minor Statute

Understanding the detailed elements of the Ohio Pandering in the Obscenities of a Minor Statute (§2907.321) is essential to crafting your defense, and could potentially determine the outcome of your case. In other words, if you and your child pornography defense attorney can demonstrate the absence of one or more of the required elements for conviction, the prosecution will not be able to prove its case beyond a reasonable doubt.

Section 2907.321 provides:

A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

(1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers;

(2) Promote or advertise for sale or dissemination; sell, deliver, disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, disseminate, display, exhibit, present, rent, or provide, any obscene material that has a minor as one of its participants or portrayed observers;

(3) Create, direct, or produce an obscene performance that has a minor as one of its participants;

(4) Advertise or promote for presentation, present, or participate in presenting an obscene performance that has a minor as one of its participants;

(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants;

(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.

(B)

(1) This section does not apply to any material or performance that is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

(2) Mistake of age is not a defense to a charge under this section.

(3) In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.

(C) Whoever violates this section is guilty of pandering obscenity involving a minor. Violation of division (A)(1), (2), (3), (4), or (6) of this section is a felony of the second degree. Violation of division (A)(5) of this section is a felony of the fourth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this section or section 2907.322 or 2907.323 of the Revised Code, pandering obscenity involving a minor in violation of division (A)(5) of this section is a felony of the third degree

Definitions Under § 2907.321

“Knowledge”—In order to be found guilty of pandering in the obscenities of a minor, the defendant must have known of the nature of the offense at the time of its commission. That is, the defendant must have had knowledge of the conduct at issue and the fact that such conduct was criminal in nature. Such knowledge must exist at the time of the crime’s commission. Knowledge after-the-fact does not qualify. For example, defendant’s friend gives him a CD that contains child pornography. However, defendant tells his friend that he is giving him music files and asks him to copy and give them to someone else. The CD is labeled with the names of popular songs. Therefore, without viewing or examining the files, the friend reasonably believes what the defendant has told him. He therefore proceeds to copy the files and gives them to another. Outcome: the friend would not be guilty of the crime of distribution of obscene materials involving minors. Similarly, if the defendant revealed the true contents of the files after the fact, the friend would not be found guilty. Why? Because defendant’s awareness of the nature of the offense and knowledge of the wrongdoing must occur contemporaneously (at the same time). 

“Obscene Material”

Obscene material is defined as depictions which, when taken as a whole, appeals to the prurient (sexual) interest, patently (blatantly) and offensively depicts sexual conduct in a manner that would offend an average, reasonable person. In addition, when considered as a whole, the material lacks serious literary, artistic, political, or scientific value.

Illegal content includes photographs, images or other digital or pictorial depictions, magazines, and replicas/photocopies of images. The content can be stored on DVDs, CDs, USB drives, internal and external hard drives, or other devices and/or data storage mediums.

“Minor”

A minor is defined as a person under the age of majority (under age 18). At times, it can be difficult to determine whether or not the individual depicted in the explicit material is, in fact, a minor. Your attorney will also determine whether the material falls within the legal definition of child pornography: the person depicted or involved in the material or performance of obscenity can be inferred to be a minor through the title, text, visual representation, or if the material or performance represents or depicts the person involved as a minor. The judge and jury decide whether the individual(s) represented are, in fact, minors, and the burden of proving the minor status of the participants ultimately falls upon the prosecution. If the prosecution cannot show that the individuals depicted are under 18 years of age, it will not be able to prove that the material was “obscene” and the charge will fail.

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Ohio Elements of Pandering of Obscenities Charges

In order to fashion a cogent and potentially successful defense, individuals charged with child pornography must be aware of the elements of the crime. Other than abstention from the prohibited criminal conduct, lack of awareness is the best safeguard against conviction.

To be convicted of pandering obscenities in Ohio, the defendant must have committed one or more of following offenses:

• Possession of Child Pornography involves the knowing, intentional keeping and storing of obscene materials involving minor children under the age of 18. Knowledge encompasses understanding the nature of the offense and awareness of wrongdoing at the time of the crime’s commission. Intent goes to the defendant’s mental state and is compromised of knowledge and purpose in furtherance of the wrongful act.

• Production of Child Pornography involves the fostering and encouragement of minors’ participation in depicting sexually explicit acts. These acts need not be performed to be criminal; they can also be simulated (give the appearance of) sexually explicit conduct. For a finding of guilt, the defendant must have had knowledge of the nature of the offense and intent to commit the act.

• Distribution of Child Pornography involves the intent to transfer, sell, or disseminate sexually explicit material depicting minors, either immediately or at some point in the future. Note that the prosecution does not have to prove that the defendant committed the act precisely at the moment that the element of intent was formed, or that the defendant had a particular person in mind. The prosecutor only has to prove that the defendant intended to distribute, show, sell, or exchange sexually explicit material involving minors. This element may be proven by either direct or indirect evidence.

Example of Direct Evidence: The prosecutor can produce emails in which the defendant expressly agreed to distribute the materials at issue.

Example of Indirect Evidence: Defendant is a member of a group that has a history of file sharing and exchanging the materials in question.

Note, however, that even if the prosecutor has difficulty or is unable to prove defendant’s intent beyond a reasonable doubt, a charge can still be filed.

• Knowledge and Intent to Possess, Produce, and/or Distribute Obscene Material — Obscenity is defined as material which (1) appeals to the prurient (sexual) interest; and (2) lacks serious literary, artistic, political, or scientific value.

To be charged, the defendant must have knowledge that the material in question falls within the above definitions, and defendant must have the requisite intent to engage in possessing, producing and/or distributing such material.

Keep in mind that in the case of possession, knowledge of the nature of the offense and the act itself must be contemporaneous (i.e., occur at the same time).

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Federal Child Pornography Statute (18 U.S.C. § 2251)

An overview and comprehensive understanding of 18 U.S.C. § 2251 will fortify defendants in defending charges of production and/or distribution of child pornography.

Federal cases typically divide defendants into two categories:

(1) those who allegedly commit production offenses, in which the defendant advertises for minors to appear in child pornography photos, videos, or other materials; and

(2) those who allegedly engage in distribution and collection offenses, without producing them (“non-production” offenses).

18 U.S.C. §2251 – Sexual exploitation of children provides:

• 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.

• 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 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.

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Federal Elements of Child Pornography Charges

In considering the elements of child pornography under federal law, note that knowledge and intent to commit the crime are salient. The following explanations will be instructive and assist defendants in understanding the elements of the crime.

Knowing Possession of Obscene Material — Commission of the crime of child pornography involves physical possession and/or access to sexually explicit materials involving minors via the Internet. The prosecution must prove that either the defendant had possession of the illicit material or accessed it with an intent to view it. Therefore, under federal law, accessing the material alone, without downloading or keeping the images, still subjects the defendant to liability under federal law.

Possession of Child Pornography — An Offense Under 18 U.S.C., Chapter 110, § 2252

When a defendant acts with knowledge and intent to view films, books, articles, computers disks, videos or any other sexually explicit material involving a minor, the defendant can be subjected to severe penalties and a possible prison term of up to ten years. If, however, the material depicts a prepubescent minor under age 12, the prison term increases to 20 years.

Prosecution for Possession of Child Pornography Under Federal Law can occur only when the federal courts assume jurisdiction over the case. The requirements for placing the offense under federal jurisdiction are quite broad, particularly given the Internet’s expansive reach, which renders child pornography almost always subject to federal jurisdiction.

Production of Obscene Material Involving Minors Engaging in Explicit Sexual Conduct

For purposes of federal law (as in the state of Ohio), a minor is anyone under 18 years of age. The definition of “sexually explicit material” is far-ranging, though it generally means engaging in sexual intercourse or other sex acts, the lascivious display of genitals or pubic area, or a simulation of these acts. The trier of fact (i.e., the jury) must consider whether the nature of the material, when considering the totality of the content in question, falls within the purview of criminality.

The material must appeal to the prurient interest in the form of sexual activity or display of the genitals. Those depictions that represent children in adult poses, but fully clothed with covered genitals and pubic areas are not considered obscene material involving minors under federal law.

To qualify as falling within the definition of being “sexually explicit conduct,” the image does not have to depict the child engaging in sexual activity. Nudity is also considered to be illegal pornography if it is sufficiently sexually suggestive. The image must be taken in the context of the publication, film, electronic medium, etc.. For example, photos of naked indigenous children in an anthropology textbook most likely would not be considered child pornography under federal law. 

Exception:

Any depictions that have either, literary, educational, artistic, political, or scientific value are not considered child pornography under federal law.

Visual Depictions of Sexually Explicit Conduct

This element emphasizes that there must be a visual representation of a minor engaged in the illegal conduct. The law specifically enjoins depictions of such acts.

Knowledge that the Visual Depiction was of Sexually Explicit Conduct, and Knowledge that At Least One Person Was a Minor

This final element speaks to defendant’s actual knowledge of the materials’ content. Typically, the prosecution will argue that the material contains patently explicit depictions, and therefore, the “knowing” element is a necessary consequence of viewing that content. However, there may be instances where the prosecution is unable to prove that the depictions at issue involved any person or persons under the age of 18.

Distribution of Child Pornography Offense Under Federal Law

This offense includes the knowing distribution, sending, transport, shipping, copying for distribution and receiving of child pornography, including via the internet.

Distribution and Sale of Child Pornography

18 U.S.C. Chapter 110 § 2252 prohibits the knowing transport, distribution, or sale of visual depictions of lewd conduct involving minors (child pornography). First offenders face 5 to 20 years in prison, and those with prior offenses can expect a sentence of no less than 15 and up to 40 years.

Production of Child Pornography by a Legal Parent or Guardian (18 U.S.C. § 2251)

Production of material involving parental or legal guardians is a criminal offense when said person(s) knowingly permit a minor or minors to engage in any form of sexually explicit conduct for the purpose of producing visual depictions of such conduct. In addition, the knowing publication of an advertisement that has as its underlying motivation the purchase, production or distribution of child pornography is strictly prohibited by law.

The Prosecution’s Burden of Proof Under Federal Law

The prosecution’s “beyond-a-reasonable-doubt” standard involves the following:

(1) that the defendant knowingly possessed or accessed material containing or depicting visual images of minors engaged in sexually explicit conduct; and

(2) that the aforementioned activity took place within the United States or otherwise satisfies the requirements for the imposition of federal law; and

(3) that the production of the material involved a minor or minors engaged in sexually explicit conduct; and

(4) that the defendant knew of the nature of the content

Affirmative Defense to Child Pornography Under the United States Code

(18 U.S.C. §2252)

Defendant possessed less than three (3) depictions of pornography, allowed access to each visual depiction, or

took reasonable, good faith steps to destroy the material and then report the matter to a law enforcement agency.

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Children Charged with Child Pornography (Sexting)

First used in the Australian Sunday Telegraph Magazine in 2005, the term “sexting” is defined as the sending of sexually explicit messages and/or images and videos via smartphones, tablets, or other similar devices. Sexting can occur either between adult partners or consenting adults that are in (or hope to be in) a romantic relationship. When sexting occurs between consenting adults, the act is not a crime. However, if the act of sending explicit images involves those under the age of majority, it becomes illegal. For example, adults aged 18 years and over sometimes enter chatrooms, engage in the act of sexting, and eliciting replies. Young teens who respond to such messages then become unwittingly involved in and victimized by child pornography. Ultimately, this type of illegal activity is neither viewed nor charged any differently than an actual predator who engaged in the handling of child pornography.

Anyone who knowingly creates, reproduces, or sends sexually explicit images (whether or not faces are visible) via cell phone, text, social media or other forms of online communication between or involving individuals under the age of majority (18 years) becomes embroiled in the crime of child pornography. The fact that the minor(s) involved have consented to such activity is not a defense. If a minor female texts an explicit image of herself to her boyfriend, both the sender and the recipient can be charged with sexting. If the boyfriend then forwards that image to someone else, that person can also be charged.

Although laws specifically pertaining to sexting on not on the books in Ohio, it is a crime to create, reproduce, buy, sell or advertise sexually explicit material involving a minor, and can lead to charges of pandering, obscenity involving a minor, child endangerment and bullying, among other crimes.

As to consenting adults, sexting is not a crime, but can lead to harassment, invasion of privacy, and/or other felonious activities, triggering criminal or civil liability.

Typically, state sexting statutes are unconstitutionally vague, and juvenile defense attorneys often attempt to have the charges dismissed. When the act of sexting is accompanied by the commission of other crimes, such as sexual assault or rape, juveniles may be required to register as sex offenders, or alternatively, if the offender has reached the age of majority and knowingly disseminates sexually explicit photographs to a minor, the same result may obtain. However, without other exacerbating factors, the consensus has been to downgrade the charges to a lesser offense.

Juveniles charged with sexting crimes are prosecuted according to the discretion of Ohio state prosecutors, in some cases placed in a diversion program, and subjected to various community service tasks. However, prosecutorial leniency in these cases does not negate the lasting effects on a child’s future. Minors charged with sexting crimes often feel compelled to perpetuate their behavior as a means of sustaining relationships. Moreover, the pervasive use of cell phones prompts the need to engage in sharing suggestive images. The proliferation of such exchanges can have enduring — and tragic — emotional and psychological effects on the participants, resulting from the dissemination of explicit photographs, and concomitant bullying.

In order to stave off the potential dire emotional and mental health effects of sexting, the intervention of forensic specialists trained in child and adolescent psychology can intervene to mitigate the potential domino effect of even a single act of sexting.

To constitute child pornography, the production of said material must involve an individual under 18 years of age. This second element of the offense is not as straightforward as it may seem, since the age of the individual(s) depicted in the material at issue is not always evident. The burden falls upon the prosecution to prove that the representations are, in fact, of prepubescent children, not eighteen-year-olds portrayed as minors. If, however, the images clearly depict minors, proof must still be established.

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Penalties for Child Pornography Convictions

The penalties for a child pornography conviction are quite severe and can have enduring effects on an offender’s life, most notably sex offender registration and prison terms, along with collateral consequences.

Ohio Revised Code § 2907.321-322

Pursuant to Ohio Revised Code § 2907.321-322, the following penalties will ensue for a child pornography conviction:

1. Production, reproduction, or distribution of explicit materials involving minors is a felony of the second degree, with a rebuttable presumption in favor of 2-8 years in prison. If a defendant does not have viable affirmative defense, a mitigation defense may be available if it is sufficiently legally justifiable to overcome the presumption.

2.  Pandering in the obscenities of a minor is punishable by up to eighteen months in prison (but this is not a presumption in favor of prison). The sentencing court looks at whether the defendant has prior convictions, and if so, a harsher sentence will be imposed. If there are similar offenses in a defendant’s background, that individual will have an uphill climb. If the defendant pleads guilty or is convicted of the crime, sex offender registration is not negotiable. The only means by which sex offender registration is not mandatory is if defendant pleads not guilty, the case is dismissed, or the prosecutor agrees to amend the offense off of another sex offense.

3. Possession, creation, recording, photographing, filming or disseminating illicit materials involving minors is a Tier II classification that carries mandatory sex offender registration for a period of twenty-five years under the Ohio Revised Code § 2907.321-322. Such a penalty places restrictions on where the offender can live, the ability to obtain employment, own property, engage in academic studies, and exercise civil liberties (e.g., the vote), among other restrictions.

Child Pornography Sentencing Chart

Penalties Overview Under Ohio Revised Code § 2907.321-322

Possession of child pornography is a 4^th degree felony, punishable by 18 months in prison and/or a fine of $5,000. For a Tier II offense, there is a mandatory sex offender registration of 25 years.

Production of child pornography is a 2^nd degree felony, punishable by 2 to 8 years in prison (carrying a rebuttable presumption) and/or a $15,000 fine.

Ohio Revised Code § 2907.323 Illegal use of minor in nudity-oriented material or performance.

According to Ohio Revised Code § 2907.323, the crime of illegal use of a minor in nudity-oriented photographs or videos (child pornography), the following offenses and corresponding penalties are the following:

1) Photographing any minor who is not the person’s child or ward in a state of nudity or creating, directing, producing, or transferring any material or performance that shows the minor in a state of nudity. This is a felony of the second degree, punishable by up to 8 years in prison. Those convicted will also have to register as a sex offender and follow the strict rules for where a sex offender can live, work, travel, etc.;

2) Consenting to the photographing of the person’s minor child or ward, or photographing the person’s minor child or ward in a state of nudity or consenting to the use of the person’s minor child or ward in a state of nudity in any material or performance, or using or transferring material is a felony of the second degree as a first offense, punishable by up to eight years in prison. Those convicted will also have to register as a sex offender and follow the strict rules for where a sex offender can live, work, travel, etc.

3) Possessing or viewing any material or performance that shows a minor who is not the person’s child or ward in a state of nudity. This is a felony of the third degree, punishable by up to thirty-six months in prison.

4) Possession or viewing of any material or performance depicting a minor who is not the person’s child or ward in a state of nudity is guilty of a felony of the fifth degree, punishable by up to 6 to 12 months in prison, unless one of the following fact scenarios applies:

The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance, or

The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.

Sentencing Chart for the Illegal Use of Minor in Nudity-oriented Material or Performance. 

Penalties Overview Under Ohio Revised Code § 2907.323

Under Ohio Revised Code §323, production or consent to production of illegal materials or performances depicting minors are felonies of the 2^nd degree, punishable by up to 8 years in prison, with mandatory sex offender registration.

Possession of such depictions or performances is punishable by 6 months in prison. Sex offender registration is not required.

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Collateral Consequences of a Child Pornography Conviction

When convicted of a child pornography offense, an individual’s entire quality of life is at stake, irrespective of whether or not the conviction carries a prison sentence. These consequences can and do have an indelible impact, which cannot easily be overcome.

The repercussions of a child pornography conviction are the following:

A permanent criminal record can prevent you from being gainfully employed or retaining a job, lead to loss of your driver’s license, impede your ability to attend an institution of higher learning, and most of all, you will suffer the enduring social stigma of having a criminal “rap sheet.”

Loss of the right to own a firearm deprives you of your Second Amendment right to keep and bear arms, without going through extensive bureaucratic and legislative processes. If you are convicted of committing a child pornography offense, obtaining a firearm permit in Ohio will be extremely difficult.

      Losing the right to vote is disenfranchisement or deprivation of suffrage, the right of every person to participate in the electoral process.

            Loss of child custody or visitation alienates you from your children or those in your custody.

            Denial of a visa, permanent residency, citizenship, or deportation wi