18 U.S. Code § 2252 - Certain Activities Relating to Material Involving the Sexual Exploitation of Minors
Suppose you possess, produce, sell, or distribute any material depicting a minor under 18 in a sexual manner. In that case, you could be charged with violating 18 U.S.C. 2252 federal child pornography laws.
Child porn is a serious federal offense that victimizes vulnerable children. If you are convicted, the legal penalties are severe. The laws against child porn are among the strictest in the federal criminal justice system.
Child pornography is defined as any visual imagery that depicts someone under 18 in sexual situations for the purpose of sexual stimulation, including pictures or videos of minors engaging in explicit sexual activity or graphic nudity.
Notably, it's not considered child porn unless the person in the images or videos is indistinguishable from an actual child, meaning an ordinary person viewing the depiction would reasonably conclude it's an actual minor engaged in sexually explicit conduct (18 U.S.C. 2256).
It does not include visual depictions of drawings, cartoons, paintings, sculptures, or computer-generated images. In other words, the depiction must be child porn with actual minors.
Suppose you are under a criminal investigation or already indicted under 18 U.S.C. 2252 or a related statute. In that case, early intervention into your case by an experienced federal criminal defense attorney can prove critical to the outcome.
18 U.S.C 2252 says, “(a) Any person who (1) knowingly transports or ships 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, if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct….”
What Are Peer-to-Peer Online Networks?
Peer-to-peer networks are a prime target of child pornography laws in the federal system. For example, suppose federal prosecutors can prove you were responsible for distributing child pornography online. In that case, you will face a more severe sentence if convicted.
Often, people using peer-to-peer networks are unaware they are accessing these networks, which will open their computer files to others in the network for downloading child pornography files.
Suppose another network member who is a federal agent can download child porn material from your computer through the network. In that case, you could face more severe charges of distribution of child pornography.
What Does the Law Say?
As noted, 18 U.S.C. 2252(a)(1) describes the federal crime of knowingly transporting or shipping child pornography using any means of interstate or foreign commerce across state lines or international borders, including your computer.
Notably, suppose child porn was transported within state boundaries. In that case, it won't typically result in a federal prosecution but rather under local state laws.
18 U.S.C. 2252(a)(2) describes anyone who knowingly receives or distributes visual depictions of minors by using interstate or foreign commerce or mailed, shipped, transported, or has material, including by computer, that knowingly reproduces depictions for distribution affecting interstate commerce.
In other words, this subsection addresses both the receipt and distribution of child porn images, including the following:
- downloading child pornography images from a website, or
- sharing child porn images with other internet users with a file-sharing service.
18 U.S.C. 2252(a)(3) describes the sale, or possession with intent to sell, of child pornography images. As noted, these offenses have to occur in the special maritime and territorial jurisdiction of the United States or land or buildings that are owned or under the control of the government, including Indian country.
18 U.S.C. 2252(a)(4) makes the simple possession of child porn a federal crime. This statute says, “knowingly possesses, or knowingly accesses with intent to view, one or more books, magazines, periodicals, films, videotapes, or other matter which contain any visual depiction.”
Again, it's a federal offense to sell knowingly or possesses with intent to sell any visual depiction of minors that have been mailed, shipped, or transported using interstate or foreign commerce or shipped or transported using materials that have been mailed, shipped, or transported using interstate or foreign commerce, including by computer.
What Are the Related Federal Offenses?
18 U.S. Code Chapter 110, sexual exploitation and other abuse of children, has several federal laws related to certain activities relating to material involving the sexual exploitation of minors, including the following:
- 18 U.S.C. 2251 - Sexual exploitation of children;
- 18 U.S.C. 2251A - Selling and buying of children;
- 18 U.S.C. 2252A - Activity relating to material containing child porn;
- 18 U.S.C. 2252B – Misleading domain names on the Internet;
- 18 U.S.C. 2252C – Misleading words or digital images on the Internet;
- 18 U.S.C. 2253 – Criminal forfeiture;
- 18 U.S.C. 2254 – Civil forfeiture;
- 18 U.S.C. 2255 – Civil remedy for personal injuries;
- 18 U.S.C. 2256 – Definitions for chapter;
- 18 U.S.C. 2257 – Record keeping requirements;
- 18 U.S.C. 2257A – Record keeping for simulated sexual conduct;
- 18 U.S.C. 2258 – Failure to report child abuse;
- 18 U.S.C. 2258A – Reporting requirements of providers;
- 18 U.S.C. 2258B – Limited liability for providers or domain registrars;
- 18 U.S.C. 2258C – Use to combat child porn of technical elements;
- 18 U.S.C. 2258D – Limited liability for NCMEC;
- 18 U.S.C. 2258E – Definitions;
- 18 U.S.C. 2259 – Mandatory restitution;
- 18 U.S.C. 2259A – Assessments in child pornography cases;
- 18 U.S.C. 2259B – Child pornography victims reserve;
- 18 U.S.C. 2260 – Produce sexually explicit depictions to import;
- 18 U.S.C. 2260A – Penalties for registered sex offenders;
- 18 U.S.C. 1461 – Mailing obscene or crime-inciting material;
- 18 U.S.C. 1462 – Import or transport of obscene material;
- 18 U.S.C. 1465 – Transport obscene material for sale or distribution;
- 18 U.S.C. 1466 – Engage in the business of selling obscene material;
- 18 U.S.C. 1470 – Transferring obscene material to minors.
What Are the Penalties for 18 U.S.C. 2252?
The penalties will depend on how many images you're caught with and what the type of images are. Another big thing is they're looking at production – whether or not someone is actually trying to produce child pornography, which can come in different forms. If you're in a chat room and ask somebody under 18 to send you a nude photograph of themselves, you produce child pornography, and you're facing a 15-year mandatory minimum.
Another big thing the government is looking at is whether or not you're trying to meet up with somebody under the age of 18 for purposes of some sexual contact, which can assure you're facing vast amounts of time in federal prison served at 85%.
Suppose you or a loved one has been arrested and accused of possessing child pornography at the federal level. In that case, you're facing many years in federal prison, a lifetime of registration, and many other penalties that can carry with you for the rest of your life.
18 U.S.C. 2252(b) imposes penalties for any defendant who was convicted of a child porn offense, which will vary based on the details of the case, as follows:
- Simple possession of child porn is punishable by a maximum of 10 years.
- Convictions for second or subsequent offenses of simple child porn possession carry 10 to 20 years in federal prison.
- Anyone who violates, attempts, or conspires to violate the child pornography laws will be fined and sentenced to prison for not less than five years or more than 20 years in federal prison. A second or subsequent offense could result in up to 40 years in prison.
- If any images portray children under 12, the sentence can be increased to 20 years in prison.
- Any convictions for second or subsequent offenses of mere possessions carry 10 to 20 years in federal prison.
What Are the Defenses for 18 U.S.C. 2252?
Suppose you were charged with violating 18 U.S.C 2252 federal child pornography laws. In that case, our federal criminal defense lawyers can use different strategies to obtain the best possible outcome.
Notably, under 18 U.S.C. 2252(c), there is an affirmative defense to charges of simple possession of violating paragraph (4) of subsection (a). It states a defense is available for those defendants who possessed less than three contraband images or videos and promptly notified law enforcement and provided them with access or took reasonable steps to destroy child pornography without sharing them with anyone else.
Notably, this legal defense is not typically available for a federal child porn prosecution. Still, it relieves those who inadvertently download only one or two child porn images.
Perhaps we can argue a lack of knowledge or intent. To convict you, a prosecutor must prove you knowingly and willfully dealt with sexually explicit images of minors.
Perhaps we can argue that you were reasonably unaware that the person depicted in the images was under 18, or you accidentally accessed the photos. You may have clicked on the wrong link or downloaded an email attachment with malware or a virus without knowing what it contained.
Perhaps we can argue there was misconduct by law enforcement, such as an illegal search of your home or computer hard drive. Likewise, maybe we can say police entrapment, meaning an online undercover officer unlawfully persuaded you to commit a crime you would have otherwise not committed.
I encourage my clients to be honest with me so that I can best figure out how to represent them and defend them and decide whether it is a case that can go to a jury trial and be successful or whether it's the type of case where we need to seek a plea agreement from the prosecutors. Then we will be relying on the following:
- federal sentencing guidelines;
- who the judge is;
- your criminal history;
- how many images; and
- what type of images there were related to child porn.
We provide legal representation throughout the United States on federal criminal matters. Contact us for a free case evaluation. The Hedding Law Firm is located in Los Angeles, California.
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