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In the Western District of Missouri, the most commonly charged federal sex crimes are possession of child pornography, receipt and/or distribution of child pornography, and sexual exploitation of a child. Carver, Cantin & Mynarich, LLC is very familiar with these sex offenses, possible defenses to these offenses, and the criminal penalties of these offenses.
- What is child pornography?
- What’s the difference between possession, production and distribution?
- When does child pornography become a federal charge?
- What are the possible sentences for these offenses?
- United States Sentencing Guidelines
- Sex Offender Registration
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What is child pornography?
18 U.S.C. § 2256 defines child pornography as any visual depiction of sexually explicit conduct involving a minor.
Visual depiction: Any image such as a photo, a drawing, or a video. Most people are surprised to learn that pornography depicting drawings of cartoon or anime children engaged in sexually explicit conduct is considered child pornography and is punishable the same as if actual children were depicted.
Sexually explicit conduct: Sexually explicit conduct does not require that an image depict a child engaging in sexual activity. We have dealt with cases where photos and video of partially naked minors constituted illegal child pornography because the images were sexually suggestive.
A minor: Under federal law, a minor is a person under 18. The age of consent for sexual activity is irrelevant. So even though a 17 year old and a 20 year old in Missouri can legally engage in sexual intercourse, it is a federal crime for the 20 year old to possess a sexually explicit photo of that 17 year old.
What's the difference between possession, production and distribution?
Possession of child pornography (18 U.S.C. § 2252 (a)(4)):
Possession of child pornography is the possession of graphic, sexual material featuring minors under the age of 18. This includes both physical items (books, magazines, videos) as well as digital media stored on a computer, cloud storage account or external hard drive.
Receipt and/or distribution of child pornography (18 U.S.C. § 2252 (a)(2)):
Receipt and distribution is receiving and distributing child pornography. A majority of these cases center around the use of a peer-to-peer file sharing program such as Limewire, FrostWire, Ares, or BitTorrent to download graphic material. Many of the peer-to-peer programs apply a default 'share' setting for users, distributing downloaded files to other users.
Many people charged with receipt and distribution have used a peer-to-peer network to exchange child pornography. In the Western District of Missouri, many of these peer-to-peer transfers are investigated by the Southwest Missouri Cyber Crimes Task Force. In fact, the evidence for many distribution cases is that an officer was able to download child pornography from a suspect’s computer.
Sexual exploitation (18 U.S.C. § 2251):
Sexual exploitation of a minor is the production of child pornography. If a person being sentenced for producing child pornography also distributed that pornography to others, the sentencing guidelines call for an increased prison sentence.
When does child pornography become a federal crime?
- if the child pornography traveled across state or country lines (through the U.S. Mail)
- if the internet is used to receive or distribute the child pornography (such as using a peer-to-peer program);
- if the materials, such as the computer used to download the image or an external hard drive used to store the image, traveled in interstate or foreign commerce. People are surprised to learn that even if the child pornography image itself did not travel across state lines, the federal government has jurisdiction if any part of the computer (or phone) that was used to send or receive child pornography was made or traveled outside of the state of Missouri.
What are the possible sentences for child pornography?
Possession of child pornography:
No prior sex offense: 0-10 years. Prior sex offense: 10-20 years.
Although probation is permitted under the law for offenders with no prior sex offense, judges in the Western District of Missouri very rarely give probation for possession of child pornography. This is why it is so important that if you have a medical condition or other extenuating circumstance that warrants a request for probation, you need to hire an attorney who will gather evidence of your extenuating circumstance and present that evidence to the court at sentencing.
Receipt and/or distribution of child pornography:
No prior sex offense: 5-20 years. Prior sex offense: 15-40 years. Because the statutory minimum term of imprisonment for first time offenders is 5 years, the law does not allow the judge to give probation.
Sexual exploitation (production of child pornography):
No prior sex offense: 15-30 years. Prior sex offense: 25-50 years. 2 prior sex offenses: 35-life imprisonment
United States Sentencing Guidelines
In addition to the mandatory minimums and maximums putting floors and ceilings on the available sentences for these sex offenses, the United States Sentencing Guidelines also guide judges as to what sentence between the minimum and maximum a defendant should actually receive. Specific enhancements (such as if a child was less than 12 years old) can greatly increase the final Guidelines calculation.
The Guidelines are sometimes amended and it is important for attorneys to know how the amendments will affect their clients’ sentences. For example, an important amendment that took place November 1, 2016 was a change to the language of USSG § 2G2.2(b)(3)(B)’s 5-level enhancement which is commonly applied in peer-to-peer cases. Because the amendment is so recent, it is hard to know exactly how it will affect cases in the Western District, but hopefully it will result in less defendants receiving the 5-level enhancement.
Carver, Cantin & Mynarich, LLC stays on top of these Guidelines and amendments to help our clients get the best possible outcome for their situations.
Sex Offender Registration
Anyone convicted of any child pornography offense will also be required to register as a sex offender. See 42 U.S.C. § 16915. The federal registration obligation has especially burdensome consequences for Missouri residents.
Missouri law states that a sex offender who was required to register under the federal Sex Offender Registration and Notification Act (SORNA) is required to register under Missouri’s Sex Offender Registration Act (SORA) even when the offender is no longer required to register under SORNA by virtue of completing his registration period under SORNA. In other words, if you have ever been required to register under the federal SORNA law, you cannot be removed from the Missouri registry and must continue to register under the Missouri SORA law.
For example, first-time possession of child pornography is a tier I offense requiring federal registration for 15 years. But even after you complete your 15-year registration obligation, you must continue to register under Missouri law because you once were required to register under federal law. See, Horton v. State of Missouri, 462 S.W.3d 770, SD 33329 (Mo. App. 2015).