Edgett Law Firm | January 3, 2020 | Criminal Defense
Unfortunately, in today’s digital age, incidents of child pornography have risen. Because of the accessibility of this material, and to protect children from being subjected to this type of conduct, the government harshly prosecutes and punishes child pornography offenders.
Child Pornography Is Both a State and Federal Crime
In this country, the U.S. government has laws that detail the type of conduct that is illegal and the punishments for a violation. Additionally, each state, including Texas, has its own laws concerning prohibited behavior. Although some offenses may be either a state or federal crime, child pornography is both. A person accused of committing this offense can be prosecuted in state or federal court (though most likely their trial will be held in the latter). The punishments for violating federal child pornography laws are much more severe than those under state statutes.
How Child Pornography Is Defined
Under federal and state laws, the definition of child pornography is similar. According to 18 U.S.C. § 2256, the offense is defined as a visual depiction of a minor (a person under 18 years of age) engaged in sexually explicit conduct. Actions prohibited by federal law include producing, distributing, or receiving child pornography. It’s also illegal for a parent or person with legal custody of a minor to allow their child to participate in a sexual act that they know will be used to create a visual depiction.
Under Texas Penal Code § 43.26, it’s illegal for a person to knowingly or intentionally possess, access, or promote material that visually depicts a person under 18 years of age engaged in sexual conduct.
According to both laws, a visual depiction is film, video, or data stored electronically.
Sexually explicit conduct includes the following:
- Sexual intercourse,
- Sadistic or masochistic abuse, or
- Lascivious exhibition of a person’s genitals or anus
The Type of Conduct that Can Be Punished Under the Laws
Under both federal and state laws, accessing, creating, or distributing child pornography is illegal. There are also some actions that people might not be aware are considered offenses. For instance, if two minors send each other sexually explicit videos or photos of themselves, they are violating child pornography statutes, even though both are under 18 years of age. Additionally, even if the visual depiction is not of an actual child (meaning it’s a computer-generated image), if the person in the material appears to be a minor, the individual who created or downloaded it can face penalties.
Also, if a person puts child pornography on a site, every time someone else accesses that material, the person who posted it can be criminally charged for each download.
Child Pornography Cases Are Aggressively Pursued
As mentioned earlier, the government seeks to prevent children from being exploited and works to protect their safety. As such, agents conduct thorough investigations of child pornography cases. There are teams specifically developed for this, and agents will go undercover as either children looking to be in child porn or as potential buyers. If a person contacts the agent to further the transaction, their IP address could be traced, and they could be arrested.
Punishments for Violating the Law
The potential penalties for a child pornography conviction are severe. Under federal law, a person can be imprisoned for 15 to 30 years. However, if they were convicted of this offense before, the prison sentence increases to 25 to 50 years. Additionally, they face 35 years to life if they had two or more prior convictions.
If the accused is convicted under Texas law, they face 2 to 10 years in prison. The penalties increase to 2 to 20 years for a second conviction, and 5 to 99 years for a third and subsequent conviction.
Defenses Are Limited
Unfortunately, because the government aggressively pursues child pornography cases, the possible defenses for an alleged offense are limited. A person simply cannot say that they didn’t know the child was under 18 years of age or that they accidentally downloaded sexually explicit material depicting a minor.
However, depending on the circumstances, some defenses can be raised. For instance, the person who downloaded the material may have inadvertently done so because it was attached to a legal file. Or, they immediately destroyed the visual depiction after realizing what it was.
For Legal Representation, Contact Edgett Law Firm
If you’ve been accused of possessing or promoting child pornography in Plano, our team is here to provide fierce legal counsel to fight your charges. We will thoroughly review your circumstances and develop a solid legal strategy on your behalf.
To get started on your case, call us at (972) 635-4224 or contact us online.