Florida Child Pornography Law

Child pornography crimes are aggressively prosecuted and strictly penalized in Florida. Whether a person is accused of merely possessing pornographic items or of distributing them, he or she could face serious penalties, including a lengthy prison sentence and registration as a sex offender.

Child Pornography as Defined By Florida Statute 847

According to Florida Statute Chapter 847, child pornography is defined as any image that shows a minor engaged in sexual conduct and includes:
  • Photographs
  • Motion pictures
  • Exhibitions
  • Shows
  • Computer depictions
  • Representations
  • Presentations

What Is Sexual Conduct In The Legal Sense?

In accordance with Florida Statute Chapter 847, the term “sexual conduct” covers a number of activities, including:
  • Actual or simulated sexual intercourse;
  • Deviate sexual intercourse;
  • Sexual bestiality;
  • Actual lewd exhibition of the genitals;
  • Masturbation;
  • Sadomasochistic abuse;
  • Actual physical contact with a person’s genitals, buttocks, or breast; and
  • Any act that constitutes sexual battery or simulates sexual battery.

Potential Punishments For Child Pornography Convictions In Florida

To convict someone of possessing child pornography, a prosecutor must demonstrate that:
  • The defendant knowingly possessed or viewed material that included sexual conduct by a child;
  • The child in the image was under the age of 18 years old; and
  • The defendant knew that the image in his or her possession contained sexual conduct of a child.
According to Florida Statute Chapter 775, defendants who are convicted of possessing child pornography face up to five years in prison and a $5,000 fine. However, if the prosecutor can demonstrate that a defendant possessed pornography with the intent to promote sexual performance by a child, the charge will be increased to a second degree felony, which is punishable by 15 years in prison and a $10,000 fine. This means that if a person had a pornographic image in his or her possession and showed it to someone else, he or she could be charged with the more serious second degree felony.

Promoting Sexual Performance by a Child

In Florida, anyone who produces, directs, or promotes any performance which includes sexual conduct by a child under the age of 18 years old faces second degree felony charges. Generally, it is considered prima facie evidence of an intent to promote when a person has three or more copies of a pornographic photo, image, or video, in his or her possession. Promoting child pornography carries the most severe penalties and is punishable by a 30 year prison sentence.

It’s also important to keep in mind that each image in a person’s possession can be charged as a distinct criminal offense and that the higher the number of offenses, the more serious the penalties.

Potential Defenses

Those who are accused of promoting child pornography are prohibited from claiming that they did not know that the subject was a child. However, defendants are permitted to argue entrapment if they have evidence that they did not have a predisposition to engage in crime prior to the officer’s involvement. Defendants may also be able to argue that the specific images in question do not satisfy the definition of child pornography, but instead qualify as child erotica, the possession of which is not unlawful in Florida.

Federal Offense

Possessing, manufacturing, promoting, and distributing child pornography can also be charged as a federal offense if it affects interstate commerce. This can have important consequences because federal law has a much broader definition of child pornography and does not require that the image actually show a child engaged in sexual activity. Instead, he or she must only be in a sexually suggestive pose.
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