What is Child Pornography?
Both the State of Minnesota and the Federal Government prohibit the production, possession, and/or dissemination of child pornography. These are felony offenses and require predatory registration. The penalties can be long prison sentences, and mandatory minimum sentences of 15 years to life in federal court.
What is the criminal law on child pornography in Minnesota?
Under Minnesota law , whoever, knowing or having reason to know its contents and character possesses pornographic work and/or a computer disk, computer or other electronic, magnetic or optical storage system or a storage system of any other type containing pornographic work involving minors is guilty of a crime
The definition of “Minor” means any person under the age of 18 at the time the pornographic work was created or altered.
What does “pornographic work” mean?
- an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor;
- any visual depiction, including any photograph, film, video, picture, drawing, negative, slide, or computer-generated image or picture, whether made or produced by electronic, mechanical or other means that:
- uses a minor to depict actual or simulated sexual conduct;
- has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct (An identifiable minor is a person who was a minor at the time the depiction was created or altered, whose image is used to create the visual depiction.);
- is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexual conduct.
What constitutes “sexual performance”?
any play, dance, or other exhibition presented before an audience or for purposes of visual or mechanical reproduction that depicts sexual conduct.
“Sexual conduct” means any of the following:
- An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.
- Sadomasochistic abuse, meaning flagellation, torture, or similar demeaning acts inflicted by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
- Lewd exhibitions of the genitals;
- Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
Consent to the sexual performance by the minor or parent/guardian/custodian is not a defense to this charge.
In order to convict a defendant of Possession of Pornographic Work Involving Minors, the State must prove beyond a reasonable doubt:
- That the defendant possessed a pornographic work, electronic device, or other system containing a pornographic work;
- The defendant knew or had reason to know that the content and character of the work was pornographic work involving minors (“to know” requires only that the actor believes that the specified fact exists);
- That the defendant’s acts took place on or about a specific date in the county in which it was charged.
Related child pornography charges can include Use of Minors in Sexual Performance, also known as Production or Dissemination of Child Pornography, which criminalize the employment, use, or assistance of a minor to engage in posing, modeling alone or with others in any sexual performance or pornographic work, if the person knows or has reason to know that the conduct intended is as sexual performance or a pornographic work.
The penalties upon conviction start at five years in prison, and escalate to up to twenty years in prison depending on the specific clause violated, and with repeat offenses. A conviction will also require registration as a predatory offender.
What is the Age of Consent?
Generally speaking, the age of consent in Minnesota is 16, subject to certain circumstances and exceptions, depending on the specific criminal statute.
Generally speaking, the age of consent under Federal law is 18, subject to certain circumstances and exceptions, depending on the specific criminal statute.
Are there defenses to child pornography charges in Minnesota?
Yes. The law allows the defendant to raise the affirmative defense that the sexual performance or pornographic work was produced using only persons who were age 18 or older. The law specifically prohibits the defendant to argue mistake of age or consent as defenses. So a solid theory of defense for the charges must be creative and could include false accusations, someone else hacking electronic devices, or being framed.
It’s important to work with an experienced criminal child pornography defense attorney to establish a persuasive defense to these charges, especially in light of the limits the law already has in place. Catherine is an experienced criminal defense lawyer that defends against charges of Child Pornography. If you or someone you love has been accused of Child Pornography, Catherine can help. Call for a free consultation.
What are some legal terms to know for child pornography charges in Federal Court?
“Sexually explicit conduct” means actual or simulated sexual intercourse, including:
genital-genital, oral-genital, anal-genital, oral-anal, whether between persons of the same or opposite sex; bestiality, masturbation, sadistic or masochistic abuse, lascivious exhibition of the genitals or pubic area of any person.
The term “visual depiction” includes a/any photograph/film/video/picture or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means. It includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.
An item is “produced” if it is produced, directed, manufactured, issued, published, advertised, created, made, or is in any other way brought into being by the involvement of an individual participating in the recording of child pornography.
A person is “used” if they are photographed or videotaped.
The Prosecution is not required to prove that the defendant knew that the minor was under the age of eighteen.
The law also prohibits and criminalizes the online advertising of minors available for sexual activity, the receipt or distribution of material containing child pornography, and activities relating to material constituting or containing child pornography.
- For a visual depiction of a child to be considered sexually explicit conduct, it doesn’t have to depict a child engaged in sexual activity. Even naked pictures of children can be considered child pornography if it is sexually suggestive.
- The age of consent in the state jurisdiction doesn’t matter in federal court. Any depiction of a minor under age 18 engaging sexually explicit conduct is prohibited.
The penalties for violating the federal law are extreme, and include mandatory minimum prison sentences of 15 or 25 years up to life, depending on the number of images, prior qualifying offenses, and other possible aggravating factors.
What are defenses to sex crimes?
There are defenses to sex crimes in Minnesota and federal court. Unfortunately, some obvious defenses are prohibited under the law, like mistake of age or consent.
However, that doesn’t stop a defendant from raising defenses like being falsely accused or framed, having their electronic devices unknowingly hacked or accessed, or any other novel or creative reason why the prosecution cannot prove the charges beyond a reasonable doubt.
If you or someone you love is facing charges involving production, dissemination, or possession of child pornography, it’s important to discuss your options as soon as possible with an experienced criminal sex crimes defense attorney who knows how to investigate, litigate, and defense against these charges in state or federal court.
Catherine is an experienced criminal defense lawyer that defends against all criminal sexual conduct, solicitation, child pornography, and other sex crimes in state and federal court. She can help. Call today for a free consultation.
Are there defenses for production, dissemination, or possession of child pornography in Federal Court?
Yes. The law specifically prohibits the defendant to argue mistake of age or consent as defenses, so a solid theory of defense for the charges must be creative and could include false accusations, someone else hacking electronic devices, or being framed.
It’s important to work with an experienced criminal child pornography defense attorney to establish a persuasive defense to these charges, especially in light of the limits the law already has in place.
Catherine is an experienced criminal defense lawyer that defends against charges of Child Pornography. If you or someone you love has been accused of Child Pornography, Catherine can help. Call for a free consultation.