California
law prohibiting child pornography can be found at Penal Code 311 PC. California
Child Pornography laws prohibit individuals from possessing or distributing
materials depicting a minor engaging in or simulating sexual conduct. There are
7 chargeable child pornography offenses in California. Charges for violations
of child pornography laws (PC 311) can be filed as either misdemeanors or
felonies.
Under
PC 311, sexual conduct includes all sexual intercourse between people of the
same or opposite sex or between humans and animals. This conduct consists of
penetration of the vagina or rectum with any object, masturbation,
sadomasochistic abuse, exhibitionism, defecation or urination.
Child
pornography laws in California include, but are not limited to: possession of
child pornography (PC 311.11), and developing/producing child pornography (PC311.3).
To
prove that a defendant is guilty of possession of child pornography (PC
311.11), the prosecutor must first show that the defendant possessed materials
involving the sexual activity of a minor. Child pornography punishable under
Penal Code 311 can take many forms, including film, photographs, photocopies,
computer hardware/software, or CD-ROM, though this list is not exhaustive.
Next,
the prosecutor must show that the defendant possessed this material knowing that it depicted persons under
the age of 18 engaging in, or simulating sexual activity.
There
is no requirement that the material be “obscene” as is required for developing
and producing child pornography (PC 311.3) discussed below.
Punishment
for Possession of Child Pornography
The
punishment for possession of child pornography can vary, depending on if the
charge is filed as a felony or a misdemeanor. Punishment can range from
incarceration in state prison, registering as a sex offender, incarceration in
county jail for up to one year, a fine not exceeding $2,500, or some
combination of incarceration and fine.
What
must be proven to convict for Developing and Producing Child Porn (PC 311.3)?
To
prove that a defendant is guilty of sexual exploitation of a minor (PC 311.1(a)),
the prosecutor must first show any one of the following:
1.
Defendant
brought the obscene material into California
2.
Defendant
possessed, prepared, published, produced or developed the obscene material
3.
Defendant
offered to distribute obscene material to someone else, OR
4.
Defendant
distributed, showed, or exchanged the obscene material with someone else
The
prosecution must also prove that when defendant acted, he/she knew the
character of the matter. Next, the prosecution must show
when defendant acted, he/she knew that the matter showed a person under the age
of 18 who was personally participating in or simulating sexual conduct.
Lastly,
the prosecution must show when defendant acted, he/she intended to sell, distribute,
show, or exchange the material with someone else for money or commercial
benefit.
Material
is considered “obscene” if it shows or describes sexual conduct in an obviously
offensive way. Furthermore, a reasonable person would find this material lacking
in any serious artistic, literary, or scientific value. In order to be obscene,
material must also be considered by an average adult to appeal to a “prurient”
interest, meaning it is arousing in a sexual way.
Punishment
A
person who violates Penal Code 311.3 can be fined up to $2,000, or imprisoned
in the county jail for up to a year. A defendant with a prior conviction of
Sexual Exploitation of a Minor will likely serve time in state prison and may
have to register as a sex offender.
Closely
Associated Crimes to California Child Pornography (PC 311)
Closely
associated crimes to child pornography (PC 311) include: distribution of
harmful matter to a minor (PC 313.1(a)), contracting to pay a minor for an
unlawful sex act (PC 310.5), and attempting to contract with a minor to commit
a lewd act (PC 288.2).
Defenses
to Child Pornography (Penal Code 311)
Material
Serves a Legitimate Purpose
If
the defendant can show that the materials with which he/she was engaging were
not for the purpose of child pornography under PC 311, and instead contained
scientific or educational value, defendant can be found not guilty of
distributing child pornography.
Entrapment
Entrapment
is another defense to child pornography charges (PC 311). The defendant must
establish that he/she was persuaded by a police officer to engage in child
porn, otherwise he/she would never have engaged in the activity. Though some
deception is permitted, an officer cannot use pure fraud to lure a person into
committing a crime he/she was not otherwise willing to commit.
Mistake
of Age
Under
PC 311.11 possession of child pornography, the defendant must have known the
individuals in the material are under the age of 18. If the material is
marketed as adult porn, but the individuals engaging in sexual activity are
actually minors, the defendant may have a defense that he/she did not knowingly
possess child pornography. This would counter the intent requirement that a
defendant “knowingly possess” child pornography.
CriminalDefense attorney Christopher Dorado represents defendants charged with child
pornography (PC 311) in the county of San Bernardino, including the cities of
Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario,
Yucaipa, and more. There is no charge for initial consultations and our office
offers 24/7 emergency service. 909.913.3138
