Penal Code 311 PC is the statute that makes child pornography illegal in California and is the primary law used by prosecutors to file charges against someone.
Simply put, it's a crime to distribute, transport, duplicate, print, advertise, or have possession of child pornography. It is also a crime to hire or attempt to hire minors with the intent to have them engage in making pornographic images.
Further, sharing images in an online porn group is also illegal, known as peer-to-peer networks. Every unlawful act of distributing, producing, viewing, or downloading child porn is covered within Penal Code 311 PC subsections.
Regardless of the violation, a primary component of all PC 311 offenses is that the perpetrator knowingly committed a child porn crime.
In other words, all child porn offenses require that a prosecutor prove two crucial factors known as the “elements of the crime” to obtain a conviction, including the following:
- you knowingly possessed images depicting minors in sexual acts, and
- you knew the images showed someone under 18 in sexual acts.
If a prosecutor can prove a defendant knew the nature of the images before sharing or possessing them, they can generally secure a conviction for violating Penal Code 311 PC. Let's review this state law in more detail below.
What Does the Law Say?
Subsections within Penal Code 311 PC deal with specific child porn violations, such as the following:
- Penal Code 311.1 and 311.2 PC makes it illegal to distribute child pornography, such as sending, transporting, producing, possessing, or duplicating any child porn with the intent to distribute it;
- Penal Code 311.3 PC makes it a crime to share child porn, such as knowingly duplicating, printing, or exchanging it;
- Penal Code 311.4 PC makes it a crime to knowingly hire, employ, use, persuade, or coerce a minor to participate in producing child porn;
- Penal Code 311.10 PC makes it a crime to advertise, sell, or distribute child pornography;
- Penal Code 311.11 PC makes it a crime to knowingly possess or control child porn produced using someone under 18.
Penal Code 311 PC explains that child pornography is any matter or material, such as films, videos, photos, negatives, or slides, that depict sexual activity by minors under 18. Sexual conduct refers to intercourse, oral sex, anal sex, and masturbation.
PC 311(a) says, “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value."
PC 311(b) says, “Matter” means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. “Matter” also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction."
What Are the Federal Child Pornography Laws?
18 U.S.C. 2252makes it a federal crime to possess, create, distribute, and transport child pornography material.
The Child Pornography Prevention Act of 1996 defines child porn as “any visual depiction of a minor engaging in sexually explicit conduct, whether it's made or produced by electronic, mechanical, or other means.”
This federal law prohibits possessing, receiving, or distributing the sexual images of minors under 18.
In other words, if you willfully possess, distribute, or access child porn with the intent to view it, you are violating federal laws. If convicted, the legal penalties include up to 15 years in federal prison for each offense and being placed on all relevant sex offender registries.
A related federal law is the sexual exploitation of children under 18 U.S.C. 2251, which makes it a crime for someone to attempt to persuade a minor to produce child pornography.
What are the Potential Penalties?
A significant factor in determining jail time for a child porn offense is the volume and nature of the contraband images or videos.
Suppose a defendant had a small number of images depicting teenagers in sexual activity. In that case, prosecutors will generally consider this less severe than having many images depicting young children.
Suppose a defendant took steps to meet children for sex in real life or communicated with them directly online. In that case, they will aggressively seek jail time to protect minors.
Most child pornography offenses are charged as wobblers or felonies. The penalties for a misdemeanor child porn conviction include a maximum fine of up to $2,500 and up to one year in jail.
Convicted defendants will also have to register as sex offenders in California for a minimum of ten years. A felony child porn conviction is punishable by a maximum of three years in state prison.
Further, the immigration status of an individual can be negatively affected by a child porn conviction which is considered a crime involving moral turpitude. As a result, an undocumented immigrant could be marked as “inadmissible” for future entry into the United States. They could also face deportation.
What Are the Common Defenses for Child Porn?
Our California criminal lawyers can use several common defenses used to contest child porn charges, including the following:
- There is no actual child pornography, as defined under California law;
- Defendant did not knowingly commit the alleged act;
- Unlawful search and seizure by law enforcement;
- The evidence was obtained illegally, either by lack of a search warrant or it does not fall within a search warrant's parameters;
- Unlawful police entrapment occurred.
The legal defenses for any crime will always depend on the facts and circumstances of each case.
Mitigating information is a significant factor in persuading prosecutors not to file formal child pornography charges, as they are understandably primarily concerned about protecting children.
Perhaps we can work out a deal where a defendant enrolls in a treatment program or individual or group therapy from a mental health professional specializing in child pornography issues.
While this approach might deal with any underlying mental health issues leading a perpetrator to possess these illegal child porn images, when documented, this therapy could be a significant mitigating factor that someone is committed to rehabilitation and the prevention of recidivism.
Further, in some cases, we may challenge the legal basis for the charges. For example, in many child porn prosecutions, the District Attorney will acquire evidence through the execution of a search warrant where police officers seize electronic devices to be forensically analyzed by experts. This includes personal computers and cell phones.
Perhaps we can challenge the validity of the search warrant and file a motion to suppress evidence to prevent it from being used in court.
If you are under a criminal investigation or already charged under California state or federal laws that were reviewed above, contact us to review all the details and potential defense strategies.
You can contact our law firm for a free evaluation by phone or using the contact form. Cron, Israels & Stark is located in Los Angeles, CA.