Child Pornography
Child pornography requires no introduction. In the United States it is defined under the federal child pornography statute, 18 U.S.C. 2256, as “any visual depiction” of a minor engaging in “sexually explicit conduct.”
A minor is defined as a person being less than 18 years of age.
Sexually explicit conduct is defined in child pornography as actual or simulated:
“(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person”
In California, it is the state’s laws addressing obscenity which also cover the sensitive issue of child pornography. It is a felony under the California Penal Code 311 to distribute or exhibit any material depicting a minor personally engaging or personally stimulating sexually explicit conduct. Apart from what has been defined above as sexually explicit conduct, the California penal code’s definition also includes a) Penetration of the vagina or rectum by any object; and b) Defecation or urination for the purpose of sexual stimulation of the viewer.
In the United States, federal law does not out rightly ban obscenity. This instead is left to state laws. In the state of California, child pornography as covered by obscenity laws is prohibited when coupled with California’s “harmful to minors” statute that id California Penal Code 313(a). Matter which is thus rated harmful would be matter which when taken as a whole by an average person is capable of being patently offensive or appealing to the prurient interest upon application of contemporary statewide standards. It would also be matter which lacks any serious literary, artistic, political, or scientific value for minors.
The production, possession, distribution or sale of child pornographic materials is a crime. Despite controversies that such blanket bans are violative of First Amendment freedoms, the law in California has been enacted with the aim of destroying the child pornography market by simultaneously targeting consumers, producers, marketers and distributors. So strict is the law that even a simple act of forwarding an email containing child pornographic material could amount to distribution prohibited under the law.
Even possessing child pornographic material privately is a felony and persons charged with such possession could spend up to three years in jail. In case of a prior conviction imprisonment could be upto 6 years. This could be in addition to fines up to 2500 USD and registration with the California Sex Offender Registry as a sex offender which is a mandatory registration for life.
Though the law against Child pornography correctly necessitates strictness, often people become victims of such strictness due to an innocent download or even for images contained in the cache of their computer which they might not even be aware of. Often persons might access child pornographic material inadvertently or become an unwilling participant in peer to peer networks on the internet where it is difficult to control the information and data being shared.
Due to the stringency of the laws in California, it is very important that a person accused of crimes of child pornography seek advise from a knowledgeable child pornography criminal defense attorney well versed in state and federal laws on the subject, particularly Californian law as such charges require an adept and aggressive defense. Any failure could result in an unwitting stigma for life.