Child Pornography


The web and related networks - BitTorrent, chat networks, message boards - offer a wealth of information, but can also create very difficult legal problems for people who possess or distribute illicit material.  Child Pornography crimes are surprisingly common, and a growing problem not just for society, but for the people who end up being charged.

If not handled properly, a child pornography charge can result in prison time, the requirement that the person register as a sex offender, treatment requirements, and challenges - by either ex-spouses, or child protective services - to a person's parental rights.

Child Pornography can be punished as a state crime or a federal crime.  Sometimes the person can be charged in both jurisdictions, although often either state or federal prosecutors - not both - will move forward with prosecution.

In general, the federal system is much harsher; it is often preferable to have the case resolved in state courts, if a dismissal is not available.  Below are summaries of the different laws and potential defenses and consequences.

General Overview of North Carolina Law

North Carolina punishes the possession, receipt, distribution, sharing, or creation of child pornography as three different separate crimes. Each crime is called "sexual exploitation of a minor" in the first, second, or third degree, depending on activities involved.

What is a Minor?

N.C. Gen. Stat. § 48A-1 defines a minor in North Carolina as someone who has "not reached the age of 18 years."

In order to violate North Carolina's child pornography laws, the state need not produce the actual individual person depicted in the pornographic person.

Mistake of Age Not a Defense

A person accused of the crime may be able to argue that the individual depicted in the material was not a minor.  But, if the state can prove in fact that the person in the material is a minor, a defense of mistake of age is not available.  In other words, the accused's good faith belief that material did not contact depictions of a minor will not excuse the crime.

Inferences Allowed

A jury is allowed to infer that the person depicted in the photograph is a minor based on the title of the image or movie or computer file, visual representations, or any accompanying text.  While the accused can raise defenses to such claims, inferences are allowed and so long as the jury is convinced beyond a reasonable doubt of the truth of the inference, the jury could convict (assuming all other elements have been proved).

First Degree Sexual Exploitation

  • Crime: Someone violates § 14-190.16, if, "knowing the character or content of the material," he induces a minor to engage in sexual activity for a live performance or for creation of a visual representation or duplicates for sale any material that contacts a visual depiction of a minor engaged in sexual activity.
  • Punishment: Violation of this section is a Class C felony exposing him to a minimum of 6 years in prison on each count, and the requirement that he registers as a sex offender for 30 years.

Second Degree Sexual Exploitation

  • Crime: Someone violates § 14-190.17, if, "knowing the character or content of the material," he 1) records, develops films of a minor engaged in sexual activity or 2) exhibits or distributes the material depicting a minor engaged in sexual activity.
  • Punishment: Violation of this section is a Class E felony exposing him to a minimum of 2 years in prison on each count (although probation, in certain situations may be available), and the requirement that he registers as a sex offender for 30 years.

Third Degree Sexual Exploitation

  • Crime: Someone violates § 14-190.17A, if, "knowing the character or content of the material," he 1)  possesses images or films of a minor engaged in sexual activity or 2) exhibits or distributes the material depicting a minor engaged in sexual activity.
  • Punishment: Violation of this section is a Class H felony exposing him to a possible sentence of 6 at least months in prison on each count (although probation, in certain situations may be available), and the requirement that he registers as a sex offender for 30 years.

Federal Child Pornography Laws

Federal criminal laws are more complicated, and more punitive.  A federal prosecution, if it concludes in conviction, rarely results in a probationary sentence.  In fact, in light of the sentencing guidelines, probation may be precluded except in exceptional cases.

Federal laws do not just apply in cases where pornography has been shared across state lines. Appellate courts have held federal child pornography laws constitutional because those laws address conduct that affects interstate commerce. In fact, some cases involving interstate trafficking in child pornography may be adopted as federal cases, the very same case may be prosecuted at the state level.  The

The Decision to Adopt a Child Pornography Case

When federal authorities decided to prosecute a case, they are said to have "adopted" the case.  The adoption of a case usually results in the state case being eventually dismissed by the local District Attorney.  In the most serious cases, both the state and the federal government may choose to prosecute the same criminal acts.  Dual prosecution is constitutional notwithstanding the Constitution's "double jeopardy" clause, an exception to which is the principle of "separate sovereigns."

Trafficking in Child Pornography

Federal Child Pornography laws, 18 USC 2251 et seq, are similar to North Carolina laws in that they criminalize the creation, distribution, receipt, and possession of child pornography.

Production of Child Pornography

  • Crime: Someone violates § 18 USC 2251 if he induces a minor through means of or affecting interstate commerce with "the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct."
  • Punishment: Violation of this results in a 15 to 30 year sentence.  The actual transportation of the child can result in a 25 to 50 year sentence.  No option exists for a probationary sentence if convicted of this crime.

Receipt or Distribution of Child Pornography

  • Crime: Someone also violates § 18 USC 2252 if he "knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce" material involving "a minor engaging in sexually explicit conduct."
  • Punishment: Violation of this statute results in a 5 to 20 year sentence, although certain enhancements can apply in cases involving repeat offenders. In addition, probation is not available for this crime.

Possession of Child Pornography

  • Crime: Someone violates § 18 USC 2252, if he "knowingly possesses... matter which contain[s] any visual depiction" involving a minor engaging in sexually explicit conduct.
  • Punishment: Violation of this statute results in a 0 to 10 year sentence, although certain enhancements can apply in cases involving repeat offenders.  In addition, probation is not available for this crime.

Punishment Under Federal Law

Unlike state laws, which involve very specific punishment ranges, federal laws have very broad sanctions (0 to 10 years, 5 to 20, 15 to 30, and so forth). A good federal criminal defense lawyer can help you understand potential actual punishments within those ranges.

The actual sentence - if convicted - will be determined in part by the advisory United States Sentencing Guidelines (§ 2G2.2) which establish the base and total offense levels.  These guidelines help the sentencing judge determine the ultimate sentence.  The application of the guidelines to the offense conduct can be confusing, and so a simple reading of the text will not necessarily help someone determine the actual potential sentence.

Federal Prison

Federal prison is a very likely consequence of a federal criminal conviction for child pornography, which is why it is so important to consult with good counsel before making decisions about how to handle your case.

There are two broad categories of federal prisons - United States Penitentiaries and Federal Correctional Institutions - that make up the Bureau of Prisons.  A federal judge can recommend a particular facility at sentencing, but ultimately the BOP, a bureau within the Department of Justice, will determine where the defendant (now prisoner) will be confined.  A number of factors go into the BOP's determination, including the nature of the crime, the length of the sentence, prior criminal history, and medical or mental health conditions.

United States Penitentiaries (USPs) are the prisons that people think of when they think "prison."  FCIs are institutions that can include camps, low security facilities and can include dormitory-style housing.

Next Steps: Handling Your Case

A child pornography case can involve many moving parts. Before taking any steps, consider the very severe risks to your reputation, career, freedom, family, and future ability to gain employment.

It's important to hire a good lawyer - an attorney Board Certified in State and Federal Law - and someone well-versed in the technologies - peer-to-peer sharing, TCP/IP, MAC addressing, chat and IRC networks -  and who can critically evaluate the evidence that may be involved in a case.

If you think you may be at risk of prosecution, or have been approached by law enforcement, be sure not to speak to anyone - including family or friends or police - about your case before contacting a lawyer who can advise you properly about the intricacies of your case and the law.