Production of Child Pornography

When Congress passed laws punishing the exploitation of children used for producing child pornography, it found this crime is harmful to the physiological, emotional, and mental health of the children depicted and it has a substantial and detrimental effect on society. The punishment for violating the offense of persuading or enticing a minor to engage in sexually explicit activity that involves producing child pornography is severe. This offense is found in 18 U.S.C. § 2251 and carries a minimum of 15 years.

Even distributing or receiving any child pornography is also a serious crime. Under the applicable federal statute, it is a federal offense if child pornography is sent by mail or by any other means involving interstate or foreign commerce, almost always the computer. Under title 18 U.S.C. §2252A, it is an offense to possess or distribute child pornography even if the offender has no involvement in the production of the images. The penalties are nonetheless severe. Miami attorney Ken Swartz at the Swartz Law Firm has the experience to represent you or a loved one if accused of child pornography production.

Under the federal obscenity laws, it is also a federal offense to produce, distribute, or receive visual depictions of any type that show minors involved in sexually explicit activity even if the images are drawings, paintings, or cartoon. Title 18 §1466A(a)(2) prohibits possession, production or distribution of the following images;

  • a visual depiction of any kind, including a drawing, cartoon, sculpture or painting,
  • that depict an image that is or appears to be a minor engaged in sexual activity, and
  • “lacks serious literary, artistic, political, or scientific value.”

This statute was challenged on Constitutional grounds in United States v. Dean , where the defendant argued that section 1466A(a)(2) prohibiting production of child pornography is overbroad because it criminalizes materials that are neither child pornography nor obscene and therefore criminalizes materials protected by the First Amendment. The Supreme Court decided in Miller v. California that obscenity is not protected by the First Amendment and set out the standard for determining what obscene material is.

A statute is facially overbroad if it criminalizes materials that are neither child pornography nor obscene: In other words if it criminalizes material protected by the First Amendment. However, the Constitutional claim in Dean was rejected by the Eleventh Circuit Court of Appeals in Atlanta because the court found that Child pornography is not protected by the First Amendment because the government has an interest in criminalizing the sexual abuse and exploitation of minors.

In this case the statute was clearly violated and the court found no First Amendment protection in these images which were clearly child pornography. Works of art would be more likely for fall under the protection of the statute if the work shows some serious artistic or literary value. There are numerous examples of First Amendment protected movies that have used adult actors depicting minors involved in sexual activity, though innocent. The defendant in Dean, gave as an example the film version of the novel Lolita in which scenes of a minor engaging in explicit sexual conduct were produced using youthful adult actors or virtual images.

If you or someone you know has been arrested, is being investigated, or is accused of committing an internet sex crime, you need an attorney to represent you who has the experience and expertise in criminal law to handle the problem. Ken Swartz , one of the top Miami criminal defense attorneys in the state, is ready to come to your defense.

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