Transmission of Pornography Via Electronic Device
In Florida, it is unlawful to transmit child pornography by electronic device. Those who are accused of this crime face third degree felony charges, which are punishable by up to five years in prison and a $5,000 fine.Elements of the Offense
According to Fla. Stat. §847.0137, a person cannot be convicted of transmitting child pornography through an electronic device, until the prosecutor has demonstrated that:- The defendant was engaged in the act of sending and delivering a pornographic image, data, or information from one or more persons or places to another person or place through any electronic device, including the internet
- At the time of the offense, the defendant knew or reasonably should have known that the images he or she was transmitting constituted child pornography
- The content in question satisfies the definition of child pornography, which includes any image that depicts a minor engaging in sexual conduct
- Sent the images from Florida to another person in the state
- Knowingly transmitted the images from another state to a Florida resident
Transmitting Information That is Harmful to Minors
Even if an image does not satisfy the standard of child pornography, a person can still be convicted under Fla. Stat. §847.0138 if the content is considered harmful to minors and there is evidence that the defendant knew that he or she was sending the image to a minor.An image is considered harmful to minors if it includes reproductions, descriptions, exhibitions, and representations that depict nudity, sexual excitement, or sexual conduct and:- Predominantly appeals to an indecent or obscene interest
- Is patently offensive to current standards in the community with respect to what is suitable material for minors
- Taken as a whole, is without serious scientific, literary, artistic, or political value
What Qualifies as Transmission?
Last year, the Florida Supreme Court held that the use of a file-sharing program could constitute transmission of child pornography under the terms of the statute. The Court stated that by loading the images into a specific computer file, a person has effectively sent the images to an electronic “place.” By then sending a request to a third party who authorized access to the file-sharing program, a person would be affirmatively granting access to the pornographic files. According to the Court, this conduct qualifies as purposeful and so falls within the definition of transmission for purposes of the statute because the person’s actions would directly cause the delivery of the images to the third party.Enhanced Penalties
When a jury determines that a defendant’s actions fall within the parameters of this statute, they will also take into consideration whether it has been proven beyond a reasonable doubt that the defendant was an authority figure at a school where the victim was a student. Authority figures include those who:- Are over the age of 18 years old
- Are employed by, are under contract with, or are volunteering at a school
- Elementary schools
- Junior high schools
- High schools
- Other public school level facilities that have been authorized under the rules of the State Board of Education
If a jury determines that a defendant does satisfy the definition of an authority figure and the victim was a minor under the age of 18 years old who was enrolled at the same school, the defendant’s charges can be increased to a second degree felony, which is punishable by up to 15 years in prison and a $10,000 fine. In addition to these penalties, those who are convicted of transmitting child pornography will be required to register on the state’s sex offender registry. This means that the defendant will need to register with the local sheriff’s office twice a year, immediately report a change of address or the purchase of a new vehicle, refrain from working with children, or living near a school, and provide all travel information and itineraries if leaving the state.
