Review of 18 U.S.C. § 2252 Federal Child Pornography Laws and Defenses
Child pornography under 18 U.S.C. § 2252 is considered a very serious federal crime victimizing children. If you are convicted, you will be facing severe punishments.
The federal laws prohibiting child porn are some of the strictest in the federal criminal justice system.
Put simply, if you are under investigation, or already indicted and arrested for a federal crime that is related to child pornography, you need to retain a criminal defense lawyer with experience handling cases in a federal court to have the best chance at a favorable outcome.
Child pornography is described any visual imagery depicting children under 18 years old in sexual activity for the primary purpose of sexual stimulation.
Child porn includes pictures or videos of minors engaging in explicit sexual activity or graphic nudity, but the person in the images or videos must be distinguishable an actual minor.
Specifically, an ordinary person who is viewing the depiction would come to a reasonable conclusion the depiction is an actual minor engaging in sexually explicit conduct as defined under 18 U.S.C. 2256.
Readers should note, under federal law, child porn does not include visual depictions that are drawings, cartoons, paintings, or computer-generated images. Under 18 U.S.C. 2252, the depiction must actually be child porn with real minors.
Virtual child porn was ruled protected by the first amendment by the United States Supreme Court in Ashcroft v. Free Speech Coalition, which is the primary reason federal statues now include language about actual depiction on real minors.
Our California sex crime defense attorneys are providing a more detailed review below.
Definition of Child Pornography
As noted, Title 18 of the United States Code, Section 2252 makes it a crime to:
- “willfully possess, create, distribute, or transport, ship, or produce child pornography involving minors engaging in sexually explicit conduct.”
The subsections within U.S.C. 2252 describe categories of conduct covered under this statute.
For instance, it's a crime to knowingly transport child pornography using interstate commerce, by computer or mail, visual depiction of a minor engaging in sexual activity.
This statute deals with both the receipt and the distribution of child pornography images, including the download of child porn online, or sharing child porn images with other internet users through a file sharing service.
Under 18 U.S.C. 2252, it's not only a federal crime to sell, or possess child porn images with the intent to sell, but it's also illegal to just have possession of child pornography.
Readers should note that most child porn crimes are prosecuted at the state level. There are jurisdictional requirements that must be met to charge someone with a federal crime.
What are the Related Federal Crimes?
18 U.S.C. § 1461 – mailing obscene matter,
18 U.S.C. § 1462 – importing or transporting obscene matter,
18 U.S.C. § 1465 – transporting obscene matter for sale or distribution,
18 U.S.C. § 1470 – transferring obscene material to minors,
18 U.S.C. § 2251 – sexual exploitation of children,
18 U.S.C. § 2251A – selling and buying of children,
18 U.S.C. § 2252A – activities related to material containing child pornography,
18 U.S.C. § 2260 – producing sexually explicit depictions of a minor to import.
What are the Penalties?
A federal child pornography conviction will normally result in substantial prison time, huge fines, probation, and mandatory sex offender registration.
In cases where there are multiple materials depicting child pornography, you might be charged separately by the federal prosecutor for each one, and your sentence will increase with each subsequent charge.
If you are convicted of violating 18 U.S.C. 2252 federal child porn laws, you will most likely be required to register as sex offender as part of your sentence, which clearly comes with a stigma attached to this title.
Subsection (b) of Section 2252 provides penalties for violating other subsections. It says that:
- “whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) will be fined under this title and imprisoned not less than 5 years and not more than 20 years.
However, subsequent violations are punishable by up to 40 years in federal prison.
Any violators of subsection (a)(4), that deals mere possession, is punishable by a maximum of 10 years.
However, if any of illegal images portray children under the age of 12, then the maximum punishment is increased to 20 years in a federal prison.
Convictions for subsequent offenses of mere possessions carry 10 to 20 years in prison.
Best Defenses for Federal Child Pornography Cases
As noted above, 18 U.S.C. 2252 has to do with those federal cases that are filed based on some sort of a child pornography charge.
That can come in many different forms. Usually what we see is the federal government tracking somebody in some manner.
For example, they've knocked over a lot of these websites that are distributing child pornography to people. Here is the normal process:
- They get the IP addresses of the people who are getting the child pornography sent to them;
- They end up getting a search warrant;
- They knock the person's door down and come in;
- They get him to make a statement;
- They seize all of their computers, laptops, etc., and
- Then they have those forensically examined.
Ultimately, if there's child pornography on there, then they charge them with possession of child pornography.
Sometimes distribution, sometimes there's other charges depending on exactly what they find when they grab the stuff.
Early Case Intervention and Important Defense Strategy Decisions
I usually get involved after the FBI or agents come and seize all of the devices. A lot of times they don't arrest the person.
They move pretty quickly, so they want to make sure when they arrest somebody, they know exactly what is on those computers, so they're going to forensically examine them first, and then they'll decide what, if anything, to charge in the case.
Obviously, you want to get an attorney on the case right away. I contact any prosecutor who might be involved. I contact anyone associated with the case, whether it be the agents or police, and I find out what the investigation is all about.
I give them my information. I talk to the prosecutor, and a lot of times, once they're done forensically examining everything, the prosecutor will call me back and tell me what they found.
We're either not going to charge your client or we're going to charge them, but at the state level, or we're going to charge your client at the federal level.
Next, we would like to make arrangements for your client to surrender and then we get you in there and obviously, we try to get some sort of a federal bond so we can get you out of custody and deal with the case.
It's always better to have an attorney working on your side. You definitely don't want to try to do this yourself.
You definitely don't want to just wait and see what happens. That's never a good strategy when the feds come knocking, especially when it involves child pornography.
What are the Best Legal Defenses?
Our criminal lawyers can use a variety of legal defenses to fight your federal child pornography charges, such as:
Possession of less than 3 images or videos – under 18 U.S.C. 2252 there is an affirmative defense to a charge of mere possession.
This complete defense applies to defendants who possessed less than 3 contraband images or videos, and either notified police and gave them access or took steps to destroy them without sharing them with anyone else.
No knowledge or intent – The prosecutor has to prove you knowingly and willfully dealt with sexual explicit images of minor.
Put simply, they must show you specifically knew the child was a minor and you accessed the content on purpose.
We might be able to argue you were reasonably unaware the person depicted in the images was under 18 years old.
Further, perhaps you accidentally accessed the images as it's not an uncommon occurrence to click on the wrong link or download an email attachment with malware or a virus, without actually knowing what it contained.
I've been handling these cases now for 27 years at the federal level. If you need help, you've come to the right place. Take the first step and pick up the phone.
Make the call and ask for a meeting with Ron Hedding. I stand at the ready to help you. We are located in Los Angeles County.