Possession of Child Pornography

Florida law defines child pornography as any image that depicts a minor engaged in sexual conduct, which according to Fla. Stat. §827.071(5) includes:
  • Actual or simulated sexual intercourse
  • Deviate sexual intercourse
  • Actual or simulated sexual acts with an animal
  • Masturbation
  • Sadomasochistic abuse, such as flagellation, torture, and physical restraint
  • Lewd exhibition of the genitals
  • Physical contact with another person’s pubic area, buttocks, or breasts with the intent to arouse sexual desire
  • Actual or simulated sexual battery
Under Florida law, images that could qualify as pornographic in nature include photos, videos, computer depictions, representations, shows, and exhibitions. Further, each image is considered a separate charge, which means that if a defendant was found in possession of 20 images, he or she would face 20 separate counts of possessing child pornography. This is also true if there is more than one child depicted in an image, in which case, each child portrayed in the photo or video would constitute a single count. However, before a person can be convicted of this offense, prosecutors must prove a series of factors, including that:
  • The defendant knowingly viewed or possessed material that falls under the definition of child pornography
  • The child depicted was a minor
  • The defendant knew what the image contained
In order to prove that a person knowingly possessed or viewed an image, the prosecutor will also need to prove that he or she:
  • Viewed or was found in possession of more than one image
  • Took steps to save the pornographic images on a computer or was aware that the computer would automatically save these types of downloaded files
If these elements can be established, then a defendant could face up to five years imprisonment for each possession charge.

Reclassifying a Charge

Florida statute 775.0847 also permits prosecutors to reclassify a charge to the next higher degree if the defendant possessed ten or more pornographic images involving a child and the content of at least one of the collected images depicts:
  • A child under the age of five years old
  • Sadomasochistic abuse of a child
  • Sexual battery of a child
  • Sexual bestiality involving a child
  • Any pornographic film involving a child, regardless of its length and whether it has sound
When there is evidence of one of these offenses, a charge can be increased from a third degree felony to a second degree felony. Second degree felonies, on the other hand, are increased to first degree felonies. A charge can also be increased in situations where prosecutors can prove that a defendant not only possessed pornography, but intended to promote sexual performance by a child, which is punishable as a second degree felony. Even showing an image to another person can qualify as the promotion of a sexual performance by a child. If investigators find three or more copies of the same image in a person’s possession, then that individual could also face distribution charges, which as second degree felonies, are punishable by 15 years in prison for each count.

Federal Possession Charges

Possession of child pornography can also be prosecuted in federal court under 18 U.S.C. §2252A, which prohibits the possession of images downloaded from the internet or stored on a computer that depict a child engaged in sexually explicit behavior. Sexually explicit conduct has been defined broadly by the courts as any conduct that is sufficiently suggestive. However, a defendant can only be charged under this statute, if prosecutors can establish federal jurisdiction, which can arise when an image was moved in interstate commerce or was created using equipment that had been transported across state lines. A number of federal courts have confirmed that transferring images electronically through the mail or over the internet is enough to satisfy this jurisdictional requirement.

Federal crimes generally involve harsher penalties than their state counterparts. This is also true for federal charges of possessing child pornography, as those who are convicted of this offense will be imprisoned for at least five years, but could face up to 20 years. If a defendant has a prior conviction for sexual abuse, sex trafficking of children, or possessing, selling, or distributing child pornography, his or her sentence will automatically be increased to a minimum of 15 years and a maximum of 40 years in prison. Even attempting to violate this federal law is punishable by up to ten years in prison, although if the minor depicted was under the age of 12 years old, the sentence could be raised to 20 years.
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