California Penal Code 311 is what outlines the parameters of child pornography laws in the State of California. This statute makes child pornography illegal in the State of California specific to sending, transporting, duplicating, printing, advertising, possessing, or hiring/persuading minors to participate in making pornographic images.
There is a myriad of examples of what is classified as child pornography and this list is not exhaustive, but comprehensive:
It is important to note that images or videos of child pornography are not protected under the First Amendment and are considered illegal in the State of California. Child pornography defined is any visual depiction of sexually explicit conduct involving a minor (someone under the age of 18). Visual depictions may include, but are not limited to: photography, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified but appear to be identified as a minor. The definition of “sexually explicit” does not require the minor to be engaged in a sexual act.
How to be charged
In the State of California and under PC 311, in order for an alleged perpetrator to be charged with Child Pornography, an indivdual must knowingly possess, distribute, or receive child pornography. Ultimately, the crime requires a level of knowledge and intent on the part of the defendant. For example, accidentally stumbling across child pornography does not meet the threshold to be charged and/or convicted of a crime. Often, Internet investigators may be tracking what computers are accessing child pornography but may not be able to discern between those that are accessing to those that accidentally accessed such materials. Generally speaking, when a defendant accesses hundreds or even thousands of images or videos over a period of time as compared to someone who may view or download an isolated image, there may be knowing intent.
Non-Production vs Production Offenses
Both receiving child pornography and possessing child pornography are referred to as non-production offenses and are generally treated less-harshly than offenses involving the production of child pornography. The charges of receiving child pornography and/or possessing child pornography are closely related– one who possesses any item necessarily also received the item at some earlier point in time. Often, when a person is discovered to merely be in possession of child pornography, there is nevertheless a legally sufficient basis for the government to also charge the person with the more severe crime of receipt because of the way people typically receive child pornography today – via peer-to-peer file-sharing between computers. These file-sharing programs such as BitTorrent are notorious mediums for the exchange of child pornography, and they also present evidentiary issues related to receipt versus possession versus distribution of child pornography because of the way they interact with users’ computers.
While possessing and receiving child pornography can result in severe consequences, distributing, transporting, or importing child pornography (collectively known as “production offenses”) can result in an even higher sentence. Although such a legal construct is familiar—most people accept the drug dealer generally receives a harsher sentence than a mere drug user – the line between possession, receipt, and distribution can be unnervingly thin.
Regardless of the classification of the offense, it is important that you seek the assistance of competent legal counsel to help you best understand your legal defense while identifying an outcome that best minimizes your risk. We here at the H Law group patiently await your call.