Transmitting Child Pornography

Under Fla. Stat. 847.0137, it is unlawful to transmit child pornography by electronic device, which includes sending any image, data, or information from one place to another over or through any medium, as long as it involves the use of electronic equipment, including the internet. The law applies to Florida residents who sent the images to another person, whether in the state or otherwise, as well as to those outside of the state who transmit such images to someone else within the state of Florida. This offense is punishable as a third degree felony, which means that someone accused of this crime could face up to five years in prison for each charge.

What Qualifies as Child Pornography?

Before a person can be convicted of transmitting child pornography via electronic device, prosecutors must demonstrate that the images in question satisfy the state’s definition of child pornography, which includes any image depicting a child engaging in sexual conduct. According to Fla. Stat. 847.001, sexual conduct is restricted to the following activities:
  • Sexual intercourse, regardless of whether it was actual or simulated
  • Deviate sexual intercourse, which means sexual conduct between those who are unmarried
  • Any sexual act, whether actual or simulated, between a person and an animal
  • Masturbation
  • Sadomasochistic abuse, including flagellation and torture, as well as binding and physical restraint if intended to arouse sexual desire
  • Lewd exhibition
  • Actual contact with another person’s pubic area, buttocks, or breast, whether clothed or unclothed
  • Any conduct that constitutes or simulates sexual battery
When an image or depiction satisfies one of these definitions and there is evidence that the material was transmitted electronically, prosecutors must provide evidence that the defendant knew or should have reasonably known that the images contained depictions of a minor engaged in sexual conduct.

Transmitting Harmful Information to Minors

When an image or depiction does not rise to the level of child pornography, but was sent to a minor, Florida prosecutors may attempt to charge the accused with transmitting obscene material, which is prohibited under Fla. Stat. §847.0138. Similarly, defendants can only be convicted of this offense if there is enough evidence to prove that the material qualifies as harmful to minors and the accused knew or should have known that he or she was sending the image to someone under the age of 18 years old.

Florida law defines material that is harmful to minors as any description, representation, reproduction, or exhibition of nudity, sexual conduct, or sexual excitement that:
  • Appeals to an erotic interest
  • Is offensive to adults in the community with respect to what is suitable material for minors to view
  • Does not have scientific, artistic, literary, or political value
Finally, prosecutors will need to establish that the intended recipient was under the age of 18 years old at the time of transmission. Defendants convicted of this crime face up to five years in prison for each alleged transmission.

Defining Transmission

What qualifies as transmission as it pertains to transferring pornographic materials has been broadly interpreted by the courts. In fact, the state Supreme Court recently stated that using a file-sharing program could constitute transmission under the child pornography statute. According to the Court, when a person loads pornographic images onto a specific computer file, he or she has sent the images to an electronic place. When the person then authorizes a third party to access the program, he or she has essentially granted access to view the images, which based on the Court’s opinion, qualifies as purposeful transmission. Basically, a person will be deemed to have transmitted the images if his or her actions directly caused the delivery of the images to another person or place. This interpretation is in line with the state Supreme Court’s opinion, which acknowledged that in passing the law, the Florida Legislature intended that the definition of transmit be broader than the mere purposeful sending of images to a specific individual.

Reclassifying Charges

Although most individuals who are charged with transmitting pornographic material electronically face third degree felony penalties, the charges can be increased in certain cases. For instance, when the person who transmitted the images was an authority figure, or adult employee of a school, and the recipient was a minor who attended the same school, the defendant’s charges could be increased to a second degree felony, which is punishable by up to 15 years in prison and a $10,000 fine for each transmission.

In addition to jail time and fines, those who are convicted of transmitting child pornography will also be required to register as a sex offender with the state after release from prison.
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