If you are under criminal investigation for a child pornography-related offense in California, there are some facts you need to know. In other words, there are some issues that you may not realize about child pornography laws and how they are investigated and prosecuted.
California prohibits possessing child pornography in Penal Code section 311.11 PC. It makes possession either a felony or a misdemeanor (wobbler), depending on the circumstances. To convict you of violating this statute, the district attorney must prove that you knowingly possessed or controlled any matter or image that was produced involving a person less than 18 years old.
They must also prove that you knew that the person depicted was less than 18 years old and either engaging in or simulating sexual conduct. Knowledge of these facts is important under the law.
Images are prohibited when they depict a minor engaging in or simulating “sexual conduct” as defined in Penal Code 311.4(d) PC. Sexual conduct includes a broad range of activities, such as intercourse, oral copulation, anal penetration, anal-oral copulation, sexual sadism or masochism, and masturbation. It also includes exhibiting the genitals or rectal area for the purpose of sexually stimulating the viewer, and any lewd or lascivious sexual act.
While state law defines sexual conduct broadly, it excludes drawings and figurines. This means it is not illegal to possess a drawing of a child engaging in a sex act (PC 311.11(d)).
Notably, prosecutions for possessing child pornography often involve hundreds of images and movies. Thus, a common question is how many different crimes someone can commit when they possess multiple images of child porn. The simple answer is that it will depend on how and where those child porn images are stored. You need to know that California child porn laws are different that federal laws.
Possession of Child Porn Law
As noted, possession of child pornography is prosecuted under California Penal Code 311.11 PC, which is defined as any matter or material that depicts sexual conduct by a person under 18 years of age. This law makes it unlawful to knowingly possess or control any material that depicts a minor engaged in sexual conduct. This statute applies broadly, encompassing images, videos, and any digitally stored files. Possession can be either:
- Actual possession, which is knowingly holding or carrying the child pornography materials,
- Constructive possession, which is knowingly keeping the materials in a location you have control over, such as your home or vehicle, or
- Joint possession, which is knowingly sharing possession with another person, such as a friend or roommate.
The penalties for violating PC 311.11 include substantial fines, imprisonment, mandatory sex offender registration, and other long-term consequences that can profoundly impact your personal and professional life. Possession of child porn can be charged as a misdemeanor or felony and is punishable by up to one year in county jail or up to three years in state prison.
California Penal Code 311.11 PC says "(a) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
Is Just Viewing Child Porn a Crime?
Most people just assume that "possession" of child porn requires downloading or physically saving files to a device. Notably, however, under California law, intentionally accessing and viewing child porn content online, even without downloading, is sufficient to charge you with a crime.
The legal definition of possession extends to situations where you knowingly view prohibited material and have the ability to control it. Suppose the district attorney can prove that you intentionally accessed or sought out child porn material, you can still face charges regardless of whether the files were stored on your device.
Additionally, downloading child porn without actually viewing it is still considered possession. However, prosecutors must prove two crucial elements of the crime factors to convict you of possessing child pornography under PC 311.11, including the following:
- You knowingly possessed or controlled child pornography, and
- You did so while also knowing that it depicted a person under the age of 18 engaging in sexual conduct.
What is Sexual Conduct?
California Penal Code 311.4(d) says "Sexual conduct means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct."
Things You Might Not Know
Let's review some crucial factors about Penal Code 311.11 PC child porn possession in California that most people do not realize or never considered, as discussed below.
- Child porn investigations often use surveillance techniques, cyber forensic tools, and undercover operations.
- Detectives might monitor online activity for months or even years before making an arrest.
- Police may already have substantial evidence against you by the time you are charged.
- Particular attention is given to devices like computers, smartphones, and external drives, which may have evidence.
- The state takes a zero-tolerance approach to child pornography because minors cannot legally consent to sexual activity.
- If two teenagers are in a sexual relationship and decide to make a sex tape, the content is still child pornography.
- Just a child porn accusation, without conviction, can cause irreparable harm to your reputation, relationships, and career.
Conviction Repercussions
Suppose you are convicted under Penal Code Section 311.11. In that case, you might serve jail time and will have to register as a sex offender for at least 10 years and possibly for life if you're convicted of a felony. However, there are other ramifications, including the following:
- If you hold a professional license in California, it could be either suspended or revoked.
- Your conviction may also negatively impact your child custody rights if you have minor children.
- A conviction for a sexual offense can result in limited or supervised visitation rights or termination.
- The possession of child pornography may also result in restitution payments to any victims.
- There may be court fees separate from criminal fines, restraining orders, and the loss of various rights.
- You will lose your gun rights if you are convicted of felony child porn possession.
- A conviction for a sexual offense can affect your immigration status, such as deportation.
What are Related Crimes?
- Lewd acts with a child under Penal Code 288 PC defines the felony crime of lewd and lascivious acts with a minor child as touching a child for sexual purposes, or causing a child to touch themself or someone else for a sexual purpose.
- Statutory rape under Penal Code 261.5 PC, statutory rape is having sex with a minor under 18. Violations of this law are wobbler offenses that can be charged as either a misdemeanor or a felony, depending on the circumstances.
- Revenge porn under Penal Code 647j4 PC criminalizes certain acts of revenge porn, but the illegal porn can involve both minors and adults.
- Contacting a minor with the purpose of getting that minor to participate in child porn under Penal Code 288.3 PC.
- Developing, duplicating, printing, or exchanging child pornography under Penal Code 311.3 PC.
- Employing or using a minor to engage in child pornography under Penal Code 311.4 PC.
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Distributing child pornography under Penal Code 311.2 PC.
Why You Need a Defense Lawyer
Depending on the nature of your child porn offense, you might also face additional restrictions under California's sexually violent predator (SVP) laws even after you have served your sentence.
SVP laws allow for the indefinite civil commitment of individuals deemed to pose a continued threat to public safety due to a diagnosed mental disorder that makes them likely to reoffend sexually.
These laws are designed to protect the public by confining such individuals in secure treatment facilities even after they have completed their criminal sentences. Thus, if you were charged with a child-porn related crime, you will need to retain an experienced California criminal defense lawyer.
As noted, even the accusation of possessing child pornography can come with a social stigma that will disrupt your life. Our defense lawyers can guide you through the criminal process and help you get through it with the least damage possible. Contact us immediately if you become aware of an ongoing investigation or learn that criminal charges have been filed.
For additional information, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
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