Child Pornography [CA Penal Code Sect. 311; 18 U.S.C §§ 2251,2252, 2256]
The sexual exploitation of minors constitutes both a State and Federal offense, possibly resulting in prosecution under both sets of laws. Under California child pornography laws, a “child” is anyone under 18, unless he/she is an emancipated minor or involved in lawful conduct between spouses when either or both of the individuals are under 18.
California Penal Code Section 311 and its related sections make it unlawful to:
- Knowingly possess, transmit, produce, or duplicate child pornography with the intent to distribute (PC 311.1 and 311.2),
- Knowingly develop, duplicate, print or exchange any material that qualifies as child pornography, regardless of intent (PC 311.3),
- Hire, persuade, or coerce a minor to participate in the production of pornography (PC 311.4),
- Advertise child porn for sale or distribution (PC 311.10), and
- Possess, control, or distribute child pornography with the knowledge that the material depicts a person under the age of 18 having or simulating sexual conduct (PC 311.11).
Related Offenses [PC 21a, 261.5, 288, 288.4, 288.7,644, 290.018]
Attempted Unlawful Sexual Intercourse [21a, 664, 261.5)]: A direct, but ineffective, act committed with the intent to have sexual intercourse with a person under the legal age of 18.
Lewd and Lascivious acts with a Child [288]: Lewd acts are those that involve the touching or fondling of a person under the age of 14 for the purposes of sexual gratification [PC 288(a)]. If the minor is 14 or 15, the offense may be charged as a sexual battery [PC 243.4].
Arranging a Meeting w/ Child for Lewd Purpose [288.4]: Any person who, motivated by a sexual interest in children, sets up a meeting with someone they believe to be a minor for the purpose of engaging in a lewd act, is guilty of a misdemeanor. If the person actually arrives at the arranged meeting, the offense is a felony.
Sex with a Child Under 10 [288.7]: An adult who has sexual intercourse, oral sex, or sodomizes a child 10 or younger faces a minimum term of 15 years to life.
Failure to Register as a Sex Offender [290.018]: If required to register as a sex offender for a prior sexual offense, the failure to register (or renew registration) is either a misdemeanor or felony depending on the underlining offense.
Under Federal law, any depiction of a minor (a person under age 18) engaged in sexually explicit conduct is illegal. Federal laws are implicated when the illegal material crosses state or international boarders using channels of interstate commerce (i.e. roadways, waterways, airways, and cable or internet lines). Unlike California, no exception is made for emancipated or married minors.
Federal law prohibits:
- employing, using, coercing or persuading a minor to engage in sexually explicit conduct in order to produce a visual depiction that will be transmitted or transported using any means of interstate commerce (18 U.S.C § 2251(a))
- mailing, transporting, shipping, receiving, distributing, reproducing, advertising, promoting, soliciting, selling or possessing with the intent to sell or view any child pornography by using means of, or affecting, interstate or foreign commerce (18 U.S.C § 2252A(a)(1) –(5))
- providing any depiction of child pornography to a minor that has been transported, produced or distributed using means of interstate commerce for the purpose of persuading the minor to engage in illegal activity (18 U.S.C § 2252A(a)(6))
Possible Penalties
Violation of California Child Pornography Laws
Many PC 311 violations are wobblers, and can either be charged as misdemeanors or felonies.
As a misdemeanor offense you may face:
- Up to 1 year in county jail
- $1k, $2k, or $2500 fine
For the following felony offenses you may face:
311.1; 311.2(c) or(d); 311.3(a); 311.4 (a) or (c)
Up to 3 years in prison
Up to $10k fine
311.10
Up to 4 years in prison
Up to $50k fine
311.2(b)
Up to 6 years in prison
Up to $100k fine
311.4(b)
Up to 8 years in prison
Up to $10k fine
311.11
Up to 3 years in prison -1st offense
Up to 6 years in prison –2nd offense
Up to 5 years if 600+ images with at least 10 of a minor < 12y/o.
Up to 5 years if sadism or masochism involved.
Violation of Federal Child Pornography Laws
18 USC § 2251(a)
- 15 to 30 yr prison sentence
- 25 to 50 yr sentence with a prior conviction
18 USC § 2252A(a)(1)-(a)(4), (a)(6)
- 5 to 20 yr prison sentence
- 15 to 40 yr sentence with a prior conviction
18 USC § 2252A(a)(5)
- Up to 10 years
- Up to 20 years if minor under 12 y/o
- 10 to 20 year sentence with a prior conviction