Child pornography is a serious crime with devastating consequences for victims. If you are facing child pornography charges, then you need an experienced criminal defense attorney by your side.
Under California and federal law, possession, distribution, or production of child pornography has severe penalties, including lengthy prison sentences and lifetime sex offender registration.
This article provides an overview of child pornography laws and the importance of seeking legal representation from a criminal defense attorney.
Overview of Child Pornography Laws in California
Definition of child pornography
Child pornography generally refers to any visual depiction of a minor (someone under 18 years of age) engaging in sexually explicit conduct. Pornographic materials include photographs, videos, digital images, and realistic computer-generated images.
State vs. federal
California and federal law prohibit child pornography. While there are similarities, there are also key differences in the definitions and penalties under each jurisdiction. It is crucial to understand both state and federal laws as you could face charges at either level.
California Penal Code 311 (PC)
California Penal Code 311 addresses various aspects of child pornography, including:
- Visual Depiction: This encompasses photographs, videos, and other visual representations of minors engaged in sexual conduct.
- Conduct: The law prohibits a range of conduct related to child porn, including possession, distribution, and production.
- Distribution: This includes any act of sharing, transmitting, or making child pornography available to others.
- Production: This involves creating child pornography, which can include photographing, filming, or generating images of minors engaged in sexual conduct.
Federal Code: Under Section 2256
Federal law focuses on visual depictions and defines child pornography as:
- Production of visual depiction of a minor engaging in lewd or sexually explicit conduct
- Digital or computer-generated images that are, or are indistinguishable from, of a minor engaging in sexually explicit conduct.
- Creation, adaptation, or modification of a visual depiction so it appears that an identifiable minor is engaging in sexually explicit conduct.
A note about conduct: Federal law prohibits a broad range of conduct, including possession, distribution, production, and receipt of child pornography.
What is NOT child pornography?
It’s important to know that not all depictions of minors are considered child pornography. Images that are not sexually explicit or suggestive, such as pictures of children in bathing suits or playing at the beach, are generally not illegal.
Why do I need a lawyer?
If you are facing child pornography charges, it is crucial to have experienced legal representation. A skilled child pornography attorney can:
- Protect your rights during the investigation
- Challenge the evidence against you
- Negotiate with prosecutors for a reduced sentence
- Represent you in court, if necessary
What is the cost?
The cost of legal representation will vary depending on the complexity of your case and the experience of the defense attorney. Many attorneys offer free consultations to discuss your case and their fees.
How is this crime investigated?
Child pornography investigations can be conducted by various agencies, including:
Local police
Local police often investigate criminal cases involving possession or distribution of child pornography within their jurisdiction.
Federal agencies
Federal agencies often get involved in cases involving production or interstate distribution of child pornography. Key agencies include:
- Postal Inspection Service: Investigates cases involving mailing or shipping of child pornography.
- ICAC Task Force: The Internet Crimes Against Children (ICAC) task force specializes in investigating online child exploitation.
- Department of Justice: Oversees prosecution of federal child pornography offenses.
- Office of Juvenile Justice and Delinquency Prevention: Focuses on prevention and intervention programs related to child sexual exploitation.
- FBI: Investigates a wide range of federal crimes, including child pornography.
- Department of Homeland Security: Investigates cross-border offenses, including importation and distribution of child pornography.
How do I know if I’m being investigated?
Signs you may be under investigation include:
- Unexpected visits from law enforcement
- Search warrants executed at your home or workplace
- Subpoenas for your internet or phone records
What should I say to the officers when they conduct a search?
It is crucial to remain silent and politely ask for an attorney. Do not consent to any searches or answer any questions without legal counsel present.
The police just searched my house — what do I do?
Contact an attorney immediately. Do not discuss the case with anyone, including family or friends.
How can Summit Defense help at the investigation stage?
Summit Defense can provide critical guidance by advising you of your rights, making sure that you fully understand the legal process, and explaining what to expect.
Our attorneys will communicate directly with law enforcement on your behalf to prevent you from making any statements that could harm your case. In some situations, we may be able to intervene early and potentially prevent charges from being filed to help to protect your future and reputation.
The Decision to Prosecute
How can Summit Defense help when the authorities are deciding whether to prosecute?
Summit Defense can play a crucial role in advocating for you. Our attorneys will present the prosecutor with any mitigating evidence to provide context and hopefully reduce the severity of the charges.
We will also negotiate for a lesser charge or an alternative resolution, such as a diversion program, to minimize the impact on your life and future.
What kind of cases does the District Attorney prosecute?
Typically, the District Attorney handles cases involving possession, distribution, or production of child pornography within the state.
What kind of cases does the US Attorney prosecute?
The US Attorney typically prosecutes cases involving federal offenses, such as production of child pornography, interstate distribution, or cases with a large volume of material.
Offenses Relating to Child Pornography
Possession of child pornography is generally a felony in California and under federal law.
Possession -— California Penal Code 311.11
To be convicted of possession of child pornography in California, the prosecution must prove that you:
- Knowingly possessed or controlled the material
- The material involved person/s under 18 years of age
- Knew the material depicted a person under the age of 18 engaging in or simulating sexual conduct
What constitutes the Federal offense of possession of child pornography?
Federal law requires the following elements:
- Knowingly possessed or knowingly accessed with intent to view
- Possessed in the United States or other area subject to federal law
- Production involved a minor/s engaging in sexually explicit conduct
- Material visually depicted minor/s engaging in sexually explicit conduct
- Knowledge that the visual depiction was of sexually explicit conduct and at least one person was a minor.
How has Summit Defense successfully defended charges of possession of child pornography?
The Summit Defense law firm has successfully defended clients by challenging the validity of search warrants to ensure that any evidence obtained unlawfully is excluded from the case. We have also argued lack of knowledge or intent as a key defense in many situations where our clients were unaware of the nature of the material involved.
Additionally, our San Francisco child pornography lawyers have negotiated for reduced charges or alternative sentencing, working to achieve the best possible outcome for our clients to help protect their futures.
Distribution of Child Pornography
What constitutes distribution of child pornography in California?
California law prohibits various acts of distribution, including:
- Sending or bringing material into California (Penal Code 311.1)
- Possessing, distributing, or offering to distribute (Penal Code 311.2)
- Distributing for commercial purposes or to minors (Penal Code 311.2(b) and 311.2(d))
- Advertising or promoting child pornography (Penal Code 311.3)
- Specific provisions related to the use of minors in the production and distribution of child pornography (Penal Code 311.3(e) and 311.3(f))
Elements of the prosecution of distribution of child pornography
The prosecution must generally prove that you:
- Sent or brought material into California or possessed, distributed, or offered to distribute
- The material was obscene
- Knew the material showed a person/s under the age of 18 years engaging in or simulating sexual conduct
- Intended to sell, distribute, show, or exchange the material with someone else
- Additional elements may apply if the distribution was for commercial benefit or to a minor
What constitutes the offense of sexual exploitation of a child in California?
The terms of this offense involve knowingly developing, duplicating, printing, or exchanging material, including file sharing, that incorporates film or filmstrip depicting a person under 18 engaged in sexual conduct.
What constitutes the federal offense of distribution of child pornography?
Under Title 18, Chapter 110, Section 2252 of the US Code, the offense involves:
- Knowingly transporting or shipping
This includes using any means of interstate or foreign commerce, such as the Internet or mail services. - Knowingly receiving, distributing, or reproducing for distribution
This applies to digital files, physical media, or any other format, regardless of whether money or other compensation is involved. - Transportation, shipment, distribution, receipt, or reproduction in the United States or other area subject to federal law
Even if the material was produced abroad, bringing it into the US for any purpose still satisfies the requirements for federal prosecution under this law. - Production involved the use of a minor/s engaging in sexually explicit conduct
This includes any visual depiction where the minor is portrayed in a sexually explicit manner, whether through photos, videos, or other forms of media. - The material visually depicted minor/s engaging in sexually explicit conduct
This can include both real-life and computer-generated imagery that portrays minors in an explicit manner. - Knowledge that the visual depiction was of sexually explicit conduct and at least one person was a minor
This knowledge is a key element in establishing intent under federal law. - Production involved a minor engaging in sexually explicit conduct
This includes any visual depiction where the minor is portrayed in a sexually explicit manner, whether through photos, videos, or other forms of media.
Is the distribution of child pornography a felony or a misdemeanor?
Distribution of child pornography is almost always a felony in California and under federal law.
How has Summit Defense successfully defended charges of distribution of child pornography?
Summit Defense has successfully defended clients facing distribution of child pornography charges by employing several key defense strategies.
Our criminal defense attorneys have argued lack of knowledge and demonstrated that our clients were unaware of the nature of the content in question. In some cases, we have used the child pornography defense of entrapment and showed that law enforcement induced the illegal activity. Additionally, we have challenged the prosecution’s case by arguing that there was insufficient evidence to prove distribution beyond a reasonable doubt.
These strategies have helped us achieve favorable case results for our clients, including reduced charges or case dismissals.
Production of Child Pornography
What are the California laws?
- Under California Penal Code 311.4(a), it is illegal to knowingly use, employ, persuade, or coerce a minor to engage in sexually explicit conduct for the purpose of creating or distributing visual depictions, such as photographs or videos. This law covers both direct involvement in the production process and encouraging or facilitating such acts.
- California Penal Code 311.4(b) addresses the involvement of minors in the creation of sexually explicit material for commercial purposes. It specifically targets individuals who profit from or promote the creation of such material, imposing severe penalties on those who exploit minors for financial gain.
- California Penal Code 311.4(c) makes it illegal to distribute or exhibit visual depictions of minors engaged in sexually explicit conduct, regardless of whether the individual participated in the creation of the material. This law is aimed at stopping the spread and commercialization of child pornography in California, even if the person is only involved in the distribution, not the production.
What elements do California laws include?
- Knowledge: The laws require that the person producing the material knew or should have reasonably known that the person depicted was a minor.
- Commercial Purpose: Increased penalties apply if the production was for commercial purposes.
- Exploitation of a Minor: This includes employing, using, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing child pornography.
- Methods of Production: The law covers various methods of production, including transporting, transmitting, or producing the material in a way that meets the requirements for federal jurisdiction.
Is it a crime to attempt to commit offenses involving child pornography?
Yes, attempting to commit any child pornography offense, such as attempting to produce or distribute it, is also a crime, even if the attempt is unsuccessful.
How can I be charged with conspiring to commit a child pornography offense with people that I don’t know?
You can be charged with conspiracy if you agree with others to commit a child pornography offense, even if you don’t know them personally. This could involve online communication or participation in online groups that share or distribute child pornography.
Arrest or Court Surrender
How can I avoid the humiliation of the arrest process?
If you are aware of an impending arrest, your attorney can negotiate with law enforcement to arrange a voluntary surrender to the court. This can help avoid a public arrest and minimize potential media attention.
What should I say to the police if I am arrested?
It is crucial to exercise your right to remain silent and ask for an attorney immediately. Do not answer any questions or make any statements without legal counsel present. This is part of your Miranda rights.
What happens once I’m charged with a child pornography offense?
Once charged, you will be arraigned in court, where the charges will be formally read, and you will enter a plea. Your attorney will then begin building a defense strategy.
Bail
If I’m arrested, will I go to jail?
Whether you are held in jail or released on your own recognizance will depend on various factors, including the severity of the charges, your criminal history, and your flight risk.
What happens if I can’t meet bail or if I’m refused bail at the police station?
You will be held in jail until your bail hearing in court, where a judge will determine whether to grant bail and set the bail amount.
What factors does the court take into account when considering a bail application?
The court will consider factors such as the nature and seriousness of the offense, your ties to the community, your criminal history, and whether you pose a danger to the public.
Reputation Management
How can Summit Defense help protect my reputation if I am accused of a child pornography offense?
Summit Defense can work to minimize media attention and public exposure and can advise you on strategies to protect your reputation throughout the legal process.
What has Summit Defense done to preserve their client’s reputation in child pornography cases?
Summit Defense has successfully negotiated with law enforcement to avoid public arrests, worked with media outlets to limit negative publicity, and advised clients on managing their online presence.
Defenses
Having a good attorney-client relationship is critical during criminal defense cases. It is important that you have experienced attorneys by your side to guide you through the process.
The prosecution doesn’t have enough evidence
Your attorney can challenge the sufficiency of the evidence and argue that the prosecution has not met its burden of proof.
I didn’t mean to download the material; it was an accident!
Your attorney can argue that you did not intend to possess or distribute child pornography or that the download was unintentional.
I didn’t know the material was of children!
Your attorney can argue that you were unaware that the material depicted minors.
It wasn’t me; I didn’t download child pornography!
Your attorney can investigate and present evidence to support your claim that you were not the person who downloaded or possessed the material.
The authorities conducted an unlawful search
If evidence was obtained through an illegal search and seizure, your attorney can file a motion to suppress that evidence.
I destroyed or reported the material — the Federal defense
Under federal law, there may be a defense if you can prove that you promptly destroyed the material or reported it to law enforcement.
Penalties
What factors will the judge take into account when sentencing me?
The judge will consider various factors, including the severity of the offense, your criminal history, your level of remorse, and any mitigating circumstances.
I was abused as a child — will the court take that into account?
Yes, your attorney can present evidence of your own history of abuse, sexual abuse, or sexual assault as a mitigating factor during sentencing.
State penalties
What is the penalty for possession of child pornography in California?
Depending on the specific circumstances of the case, penalties for possession can range from probation to several years in prison.
What is the penalty for the distribution of child pornography in California?
Distribution of child pornography carries more severe penalties, including longer prison sentences and potential fines.
What is the penalty for producing/making child pornography in California?
Producing child pornography is the most serious offense and can result in lengthy prison sentences and lifetime registration as a sex offender.
Federal penalties
Are the federal penalties for child pornography offenses more severe than the state ones?
Yes, federal penalties are generally more severe than state penalties.
What are the federal sentencing guidelines, and how do they work in relation to child pornography offenses?
The federal court’s sentencing guidelines provide baseline calculations that consider the offense level and the defendant’s criminal history. Child pornography offenses have specific guidelines that often result in lengthy prison sentences.
What are the federal penalties for child pornography offenses?
- Possession of child pornography: a base level of 18, which equates to a range of between 27-33 months imprisonment.
- Distribution of child pornography: a base level of 22, which equates to a range of between 41-51 months imprisonment.
- Production of child pornography: a base level of 32, which equates to a range of between 121-151 months imprisonment.
How can Summit Defense help me avoid an overly harsh sentence based on the federal sentencing guidelines?
Summit Defense can argue for downward departures from the guidelines based on mitigating factors, present evidence of your rehabilitation and low risk to re-offend, and negotiate with the prosecution for a reduced sentence.
How has Summit Defense helped clients facing sentencing for federal offenses?
Summit Defense has successfully secured probation for sex crime cases facing significant prison time, negotiated for alternative sentencing options such as home confinement, and obtained downward departures from the sentencing guidelines.
What are other consequences of being convicted of a child pornography offense?
In addition to prison time, other criminal charges you may face are fines and restitution, mandatory registration as a sex offender, restrictions on internet usage and contact with minors, and loss of employment and professional licenses.
What consequences does registration as a sex offender have?
Registration as a sex offender can have significant consequences, including public notification of your offense, restrictions on where you can live and work, difficulty finding employment and housing, and social stigma and isolation.
Summit Defense Can Help You
Why choose us? If you are arrested or at risk of being arrested for child pornography charges in the Bay Area, call the Summit Defense law office immediately. Our professional defense attorneys protect your rights and fight for the best possible outcome in your case.
Child Pornography Lawyer Near Me | Contact Summit Defense for a Free Consultation Today
Don’t let a child pornography charge jeopardize your future.
At the Summit Defense law firm, our experienced San Francisco attorneys provide the strong legal defense you need and fight for your rights. If you’re facing charges in San Francisco, Oakland, or surrounding areas, now is the time to take action and seek legal advice.
Contact us today for a free, confidential consultation, and let us help you protect your freedom, record, and peace of mind. Our Bay Area law firm is here to guide you every step of the way.
Call or message us now to get started!
References/Footnotes
Legal Codes
- California Penal Code Section 311 (and related sections like 311.11, 311.2, 311.4): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=311
- 18 U.S. Code § 2252 (federal law on child pornography): https://www.law.cornell.edu/uscode/text/18/2252
- 18 U.S. Code § 2256 (federal definitions related to child pornography): https://www.law.cornell.edu/uscode/text/18/2256
Government Agencies and Organizations
- National Center for Missing & Exploited Children (NCMEC)
- Department of Justice (DOJ)
- DOJ: Federalization of Criminal Law
- Postal Inspection Service (USPIS)
- Internet Crimes Against Children Task Force (ICAC)
- Office of Juvenile Justice and Delinquency Prevention (OJJDP)
- Federal Bureau of Investigation (FBI)
- Department of Homeland Security (DHS)
- American Civil Liberties Union (ACLU): Know Your Rights
Sentencing Guidelines:
COMMON QUESTIONS ABOUT CRIMINAL DEFENSE
SAN FRANCISCO CRIMINAL COURT INFORMATION
HALL OF JUSTICE BUILDING
(415) 551-4000
CIVIC CENTER COURTHOUSE
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To find out which court you are in, please see the Daily Calendar posted at Room 101 at the Hall of Justice Building, or you can contact the clerk’s office on (415) 551-0322. However, if you have retained an attorney, they will find out which court your case is in and let you know where you need to go – and if you need to attend court at all.
Directions to our San Francisco office
Summit Defense is located on 580 California St 12th floor, San Francisco. From San Francisco International Airport (SFO) head northwest and keep left at the fork to continue toward Airport Access Rd. Then keep left at the fork to continue toward Airport Access Rd and continue onto Airport Access Rd. Next, use the left lane to turn slightly left to stay on Airport Access Rd and continue straight to stay on Airport Access Rd. After that, make a U-turn and use the 2nd from the right lane to keep right at the fork, follow signs for US-101 N/San Francisco and merge onto US-101 N. At this point, use the right 2 lanes to take exit 430A to merge onto I-280 N and take exit 56 toward Mariposa Street. Use the right 2 lanes to turn slightly left onto Owens St and turn right onto 16th St. At 1.7 miles, turn left onto 3rd St. Finally, continue onto Kearny St and Summit Defense will be on your left.
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Contact us online or call us at 1-866-560-4276 to see how our criminal law specialists can support you or your loved one during this difficult time. We look forward to meeting you and discussing your defense needs as we formulate your best legal strategy.
DRIVING DIRECTIONS TO OUR SAN FRANCISCO CA OFFICE
JAILS IN SAN FRANCISCO
There are several county jails in San Francisco, as well as one located in San Bruno (although still within the jurisdiction of San Francisco county). They are run by the Sheriff’s Department.
County Jail #1 at 425 7th Street
All prisoners are initially booked in through this jail in San Francisco, but moved to on of the other facilities after booking is complete.
County Jail #2 on 7th Street
This facility houses both men and women inmates, but is the only jail in San Francisco that houses women.
County Jail #4 at Bryant Street
This jail is the maximum security facility for San Francisco County.
County Jail #5 on Moreland Drive, San Bruno
This large facility is actually located in San Mateo County, but falls under the jurisdiction of San Francisco County and City.
If a prisoner requires medical attention or mental health treatment, they are housed in a locked ward at San Francisco General Hospital on Potrero Avenue.
HOW DO I VISIT SOMEONE IN JAIL IN SAN FRANCISCO?
The Sheriff’s Department requires all visitors to schedule visits to inmate online, except for those who wish to visit people being held in San Francisco General Hospital.
Visits can be scheduled via the Sheriff’s Department website, here. Visits are available on weekends and holidays, and at the San Bruno jail on Thursday evenings, although attorneys can visit their clients outside of those times. There are strict rules that apply to jail visits, such as time limits and dress requirements. You should make sure that you review the rules carefully beforehand; otherwise you may not be allowed to visit.
Federal Court Locations
Phillip Burton Federal Building and U.S. Courthouse
+1 415-522-2000
San Francisco Federal Building
+1 800-333-4636
