Defending the Rights of the Accused for 30 Years


Jim kontos
By James Kontos

Possession of Child Pornography in Florida

There are few charges that carry the social stigma of child pornography allegations. In addition, Florida Sentencing Guidelines require prison upon conviction unless valid mitigating circumstances exist, and a conviction of a child pornography crime requires registration for life as a sex offender. As a result, these types of sex crime charges can be far more life changing than other felony accusations.

What are the child pornography laws in Florida?

Child pornography crimes in Florida can be prosecuted in both State and Federal Court. State law enforcement officers will often cooperate with, and even work together with federal agents to investigate and charge these crimes. Cases can also begin in state court and eventually be turned over to the federal courts for prosecution. If you believe you are being investigated for a child pornography crime, or have already been arrested, contact us today.

Child Pornography Defined in Florida State Laws

Chapter 827.071 of the Florida Statutes prohibits the use of a child under the age of 18 in a sexual performance. Someone may be charged with the use of a child in a sexual performance whenever he or she is alleged to have induced (or consented to) the participation of a child in a sexual performance.

This statute also prohibits the possession of any media that includes or depicts any sexual conduct by a child “with the intent to promote” this conduct. Intent to promote can be established whenever the defendant has three or more physical or digital copies of the video, photo, or other media. Both use of a child in a sexual performance and possession of child pornography with intent to promote, are second degree felonies punishable by up to 15 years in prison.

Possession of Child Pornography

Chapter 827.071(5) also prohibits the knowing possession, control, or intentional viewing of any media which the viewer knows includes sexual conduct by a child. Possession of Child Pornography is the most common child pornography crime in both state and federal court. With peer-to-peer file sharing programs, child pornography can easily be transferred from one computer to another. Whenever a known image of child pornography is transferred between computers in a file sharing program, government agents can often access a copy of that image and eventually determine the location of the computer where it was possessed through an internet service provider. Possession of child pornography in Florida is a third degree felony punishable by up to 5 years in prison.

Unit of prosecution in Florida

Each individual piece of child pornography possessed or viewed can be charged as a separate offense. Thus, possessing 100 images of child pornography on a computer can result in 100 separate third degree felony offenses, punishable by up to 5 years in prison each. With computer forensics, police departments can gather evidence of numerous child pornography images, even after being deleted, on computers or cell phones.

Texting or ‘Sexting’ Sexually Explicit Images of Child Pornography

Chapter 847 of the Florida Statutes governs obscenity crimes, and several separate child pornography charges are listed in this chapter. One section of this statute prohibits the electronic transmission of child pornography. This can include “sexting” between two teens if the photos or other media exchanged depict a child under the age of 18, even if both the sender and recipient consent to the images and no coercion was found. This means a teen who distributes a pornographic image of another teen to a wider audience (like friends or classmates) can find themselves facing a third degree felony for each image shared.

Chapter 847 also prohibits the knowing use of any online computer or internet service to seduce or entice a child to engage in sexual conduct. This can encompass conversations in online chat rooms, social media messages, direct messages, and video chats in which a participant under the age of 18 is depicted in a sexual performance.

Traveling to Meet a Minor

Chapter 847.0135(4) also makes it a crime to travel to meet a child to have sex when the internet, or electronic communication is used. Traveling to meet minor cases can be prosecuted even if no child is involved, as the law includes traveling to have sex with someone believed to be a child. Over the past several years police departments have used elaborate “sting” operations with agents pretending to be children to make arrests in these cases. Traveling to meet a minor is a second degree felony punishable by up to 15 years in prison.

Aggravating factors

Chapter 775.0847 provides harsher charges (and sentences) for those whose actions fall within certain parameters. Under this law, anyone guilty of possession of child pornography will be charged with the next higher degree of felony if:

  • the offender is in possession of 10 or more pornographic images (regardless of their content) or
  • if at least one image contains a child under the age of 5, depicts sexual battery or bestiality involving a child, or is in movie format (with or without sound).

Because each viewing or image is charged as a separate offense, this enhancing statute can have a significant impact on the potential penalties upon conviction or guilty plea.

Penalties for possession or distribution of child pornography in Florida.

All child pornography crimes in Florida are felonies, with the potential for substantial prison time, probation, and lifetime registration as a sex offender. Additionally, numerous mandatory conditions of probation can substantially restrict where the probationer can live as well as require that an electronic monitor be worn at all times. With a few exceptions, most child pornography charges are classified as second degree felonies under Florida state law, subjecting the defendant to a potential prison sentence of up to 15 years for each conviction.

The knowing viewing or possession of content that depicts sexual performance by a child, or the transmission of child pornography via electronic device, is classified as a third degree felony, which carries a prison sentence of up to 5 years. If any of the aggravating factors within Chapter 775 are present, a second degree felony charge may be elevated to a first degree felony, while a third degree felony charge may be elevated to a second degree felony. The potential prison sentence for conviction of a first degree felony is up to 30 years in prison.

Florida Child Pornography Charges Defense

Florida’s child pornography charges can seem quite unforgiving, but with the right investigation, preparation and strategy, defenses and mitigation evidence can be established. Each of the Florida child pornography statutes include a requirement that the conduct be “knowing.” This differs somewhat from crimes like statutory rape, in which even the defendant’s good-faith assumption that the victim was of legal age is not enough to escape liability. If the prosecution is unable to prove that you deliberately viewed, created, or distributed pornographic images or video, knowing that they depicted a child who was unable to legally consent, no conviction may stand.

Additionally, any statements confessing to a child pornography crime may be challenged if the statement was made through coercion or promises, or Miranda rights were not read. A computer expert can also review the information provided by the government’s computer forensic examiner to determine if their analysis is accurate. Computer experts can provide valuable information to help challenge the evidence obtained by the police in pre-trial motions (motions to suppress evidence) and at trial.

Finally, computers and cell phones require search warrants to allow the government to access the information. In order to obtain a search warrant a police officer must swear to an affidavit, and a judge must determine whether the affidavit establishes “probable cause” that the computer contained child pornography. If the police obtained evidence to establish “probable cause” illegally, or they misrepresent what happened during their investigation, the search warrant, and evidence found during the computer search, might be thrown out of court.

Although the goal in every case is to obtain a dismissal of the charge, efforts also need to be made to establish mitigation evidence to show the prosecution or judge that the accused is not a danger to children. Psychosexual reports and risk assessments completed by an expert with substantial experience in sex cases can help persuade the prosecutor or judge that a sex offense and prison is not the appropriate outcome in a particular case.

Contact a Child Pornography Defense Attorney

Because of the seriousness of these felony charges, it’s crucial to seek legal advice from an experienced criminal defense attorney as quickly as possible. Child pornography allegations can carry life changing consequences and require an attorney who understands how to defend these allegations. James Kontos has more than 30 years experience in defending the rights of the accused in Brevard County, Florida, as well as other jurisdictions in and out of Florida, and has handled numerous child pornography cases in both state and federal court. Contact us today! We will work to ensure the best outcome for your case!

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