Is Child Pornography A State Or A Federal Crime?
In Michigan, as in most states, child pornography can be a state and federal crime. Compared to a case in Michigan state court, Federal charges under the Federal series of child pornography are far more serious. The Michigan pornography statute, called child sexually abusive material, was recently amended to make it tougher with longer sentences, but remains a less serious crime than the federal counterparts. All federal crimes are complex, but child pornography crimes, in particular, are more complex than even other federal crimes, and are extremely difficult to defend.
In general, federal crimes are complicated due to the complexity of the criminal statutes under federal law, which tend to be long and detailed. These statutes often cross-reference each other, and include a requirement that the crime affects interstate commerce. Finally, and perhaps most importantly, Federal crimes are more complex than their state counterparts because of the federal sentencing guidelines.
The federal sentencing guidelines are a giant encyclopedia of headaches in and of themselves. They are long, complicated, and challenging to understand. It takes years of working with the federal sentencing guidelines before a lawyer can feel comfortable with them. It is easy to get lost in the morass of variables and aggravating factors when looking at federal sentencing guidelines. When applied to the federal series of child pornography crimes, these complicated guidelines become a nightmare.
Frequently Asked Questions
Another reason federal child pornography charges are so complicated is that the evidence and discovery they entail – they involve intensive forensic reviews by the federal government and law enforcement agencies of the client’s telephone, tablet, computer, laptop, and other electronic devices. Federal law enforcement agencies possess an incredible amount of resources, manpower, and money to investigate these crimes. The federal law enforcement agencies utilize these resources to conduct aggressive investigations. Therefore, these investigations produce a great deal of discovery (e.g., many documents and other forms of electronic evidence). It is quite common for federal agents to find hundreds if not thousands of images and videos in a defendant’s possession. This makes it difficult to defend federal child pornography cases without the use of a forensic computer expert, even for the experienced federal criminal practitioner.
The definitions of the federal crimes tend to be aggressively interpreted by the federal prosecutor (i.e., the Assistant United States Attorney). By and large, these definitions are accepted by the court. This results in even the investigation and charging of these crimes being far more complex and complicated in federal court than in state court.
Simple Possession Of Child Pornography
The least serious federal criminal child pornography charge is simple possession of child pornography, which does not carry a statutory mandatory minimum penalty. This means that if someone is convicted of simple possession of child pornography, the judge will do a straightforward federal guideline analysis of the charge and sentence the defendant without regard to any required mandatory minimum.
Possession of child pornography is exactly what it sounds like: the possession of pornographic materials of someone who is under 18 years of age. The definition of child pornography is as follows: “Any visual depiction of sexually explicit conduct involving a minor, which is defined as someone under 18 years old.” The key term here is “sexually explicit,” which is defined as the “actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area.”
This is a relatively wide-ranging and expansive definition, but there no longer seems to be much dispute over what constitutes something as “sexually explicit.” There are certainly cases where the definition can be used as a defense, such as arguing that the content is not a lascivious exhibition of the pubic area. However, using such a defense is the exception, not the rule.
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Distribution And Receipt Of Child Pornography
The next most serious federal child pornography charge is the distribution of child pornography, which does not necessarily mean that the defendant sold it or engaged in the commercial distribution. Instead, “distribution” means that child pornography was shared with another person or with others on a peer-to-peer network. This crime carries a mandatory statutory minimum, which means that the judge cannot sentence the defendant below the floor that Congress and the statute set. For distribution of child pornography, the mandatory minimum sentence is five years in prison, regardless of any mitigating factors.
There is a related charge to distribution called “receipt of child pornography,” which is one of the most challenging and controversial charges to handle. Receipt of child pornography makes it illegal for someone to receive sexually explicit material involving a minor. It carries the same mandatory minimum sentence and enhancements to the guideline offense level as distribution, which is 5 years. Many clients wonder how they can possess child pornography without receiving it, which is a good question. Essentially, this law means that both people on either end of the sharing spectrum are equally guilty and culpable of the same offense (i.e., distribution and receipt of child pornography). Both distribution and receipt carry seriously higher sentencing guidelines than simple possession, and contain more enhancements to make the already high base level offense even higher.
Solicitation Of A Minor
The next charge in the federal child pornography family is solicitation of a minor. Solicitation of a minor is the crime that people get charged with most frequently when speaking with a child online (e.g., in a chat platform, or using a social media app such as Kik or Snap Chat), via text, or on the phone. Under federal law, solicitation of a minor includes using any interstate facility (e.g., mail, internet, phone, electronic mail, texting, or social media apps) to knowingly persuade, coerce, entice or induce a minor to engage in illegal sexual activity, or even attempt to knowingly persuade, coerce, entice or induce a minor to engage in illegal sexual activity. For example, if a person tries to encourage an underage girl to send a video of herself masturbating, then that person would be guilty of solicitation of a minor—regardless of whether the video was sent. The crime is completed when the defendant makes the request, and not when the video is sent. That being said, if the child does send a video or picture, now the crime of receipt of child pornography has also been committed. And once more, if the video and/or picture was sent in response to an adult asking the minor for it, then the defendant has also committed the crime of production of child pornography (see next section).
Solicitation of a minor is a controversial federal charge because it has a higher offense level than both receipt and distribution of child pornography, and more enhancements to the offense level than possession, distribution, and receipt. Most people convicted of solicitation of a minor are scored in the federal guideline offense sections for production of child pornography. This charge leads to extremely high guideline scoring. It is not uncommon for a first-time offender convicted of solicitation of a minor to be scored in a guideline range of 360 months to life. To repeat, thirty years to life is not an unheard-of guideline range for a first-time offender, with no prior record, convicted of solicitation of a minor. Solicitation of a minor carries a 10-year mandatory minimum, which is twice as long as distribution or receipt. This mandatory minimum sentence means that even if the judge wants to give a defendant less than ten years, they cannot.
Production Of Child Pornography
The production of child pornography is commonly charged in conjunction with solicitation of a minor, which is why solicitation of a minor is so frequently scored using the guidelines for production. For example, if someone sends an underage person a message asking them to send a picture of themselves masturbating with a hairbrush and the minor does that, then it would be considered production. In other words, the defendant will have committed the crime of production of child pornography because they aided, abetted, and solicited the crime of production of child pornography. This crime carries the longest and highest mandatory minimum sentence of fifteen years.
Production of child pornography is frequently charged in combination with not only solicitation of a minor, but also with receipt of child pornography. Often, these three charges are brought in the same indictment, which enhances the seriousness of the top charge (i.e., production of child pornography). Production of child pornography carries the highest base level offense when scoring the guidelines. In addition, Production also carries even more enhancements to the already high base level offense under the guidelines of distribution, possession, or receipt.
A Repeat And Dangerous Sex Offender
In discussing the family of child pornography charges, it is essential to understand there are common aggravating enhancements that federal agencies will frequently use when charging and prosecuting these cases. One of the most common is referred to as a “repeat and dangerous” sex offender. A federal guideline provision allows the Assistant United States Attorney to enhance the charge and sentencing guidelines of defendants classified as repeat and dangerous sex offenders.
When considering repeat and dangerous sex offenders, it is true that federal prosecutors sometimes target people who have previously been convicted of a sex crime, did not learn their lesson, and got prosecuted for it a second time. However, it is not always used that way. Instead, it is frequently used as a sword to go after people convicted for the first time. This is something that clients struggle with quite a bit, because they do not understand why: if they have never before convicted of a sex crime before, then how are receiving an enhancement for being a “repeat” and dangerous sex offender.
This idea is important enough to repeat and emphasize. Defendants who have never been convicted previously of anything can still be hit with this enhancement. The circumstances under which the enhancement applies reads as follows: “In any case in which the defendant’s offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibitive conduct.” The federal statute defines “pattern of activity” as two or more events. In other words, if someone commits the crime of solicitation of a minor twice, such as by asking in two separate messages for something which constitutes child pornography, then they are considered to have committed the crime of solicitation more than once. This results in a defendant with no criminal record being charged as a “repeat” and dangerous sex offender.
The effect of being classified as a repeat and dangerous sex offender is a five-level increase in the offense level, at a minimum. In addition, the defendant’s criminal history score can be increased by being classified as a repeat sex offender as well, despite the defendant never having been charged with any crime in the past.
Child Exploitative Enterprise Charge
Another tactic used by Federal prosecutors, which is even more aggressive, is to invoke the child exploitative enterprise statute. The easiest way to understand the charge of child exploitative enterprise is by comparing it to a RICO charge — a continuing criminal enterprise for solicitation and/or child pornography.
So, when more than one person is caught chatting with kids on the internet, and soliciting child pornography, the Feds can charge child exploitative enterprise. Federal prosecutors are adding the charge of child exploitative enterprise more and more often.
This charge carries a mandatory minimum penalty of 20 years in prison. I have never seen guidelines calculated for a child exploitative enterprise case that were not life in prison. It is an extremely serious charge.
For more information on Child Pornography Law, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.
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