Child Pornography

Child pornography is defined by law as the visual depiction of a person under the age of 18 engaged in sexually explicit conduct. See 18 U.S.C. §§ 2256(1) and (8). This means that any image of a child engaged in sexually explicit conduct is illegal contraband. Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. See 18 U.S.C. § 2256(2). A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. In addition, for purposes of the child pornography statutes, federal law considers a person under the age of 18 to be a child. See 18 U.S.C. § 2256(1). It is irrelevant that the age of consent for sexual activity in a given state might be lower than 18. A visual depiction for purposes of the federal child pornography laws includes a photograph or videotape, including undeveloped film or videotape, as well as data stored electronically which can be converted into a visual image. For example, images of children engaged in sexually explicit conduct stored on a computer disk are considered visual depictions.

Federal prosecutors enforce the laws that make it a crime to possess, receive, distribute or produce child pornography in a way that affects interstate or foreign commerce. See 18 U.S.C. §§ 2251, 2252, 2252A. Thus, federal jurisdiction is implicated when the visual image is transported across state lines, or when the visual image was produced using materials that were transported across state lines. It is important to note that this set of requirements covers transporting pornographic materials depicting children electronically by computer. For example, it is illegal under federal law to send an email containing child pornography to a person in another state. It is also illegal to send an email containing child pornography to a person in the same state if the computer server for the email is located in a different state. Given the complex configuration of the Internet, this will almost always be the case. Not surprisingly, it is illegal to download child pornography from an Internet web site. Even in cases where the image itself has not traveled in interstate or foreign commerce, federal law may still be violated if the materials used to create the image - - such as the CD Rom on which the child pornography was stored, or the film with which child pornography was created - - traveled in interstate or foreign commerce. Id. While federal courts may interpret these situations differently depending upon the jurisdiction, the federal government has jurisdiction to investigate and prosecute offenders in such situations. Mailing child pornography via the United States Postal Service is automatically a federal offense, even if material is mailed to someone in the same state. Moreover, people possessing, receiving, distributing or producing child pornography can be prosecuted under state laws in addition to, or instead of, federal law.

People who sell or purchase children intending or knowing that the child will be involved with any sexual activity are also prosecuted under federal law. See 18 U.S.C. § 2251A. Federal prosecutors have legal authority to prosecute people who buy and sell children for pornographic or sexual activity when the child being sold or transferred must be transported in interstate or foreign commerce, or the offer to sell or purchase the child is communicated or transported in interstate or foreign commerce by any means, including computer or United States mails. Where this interstate conduct does not occur, state and local law enforcement authorities can prosecute this reprehensible conduct.

Congress recently significantly increased the maximum prison sentences for child pornography crimes and in some instances created new mandatory minimum sentences. These prison terms can be substantial, and where there have been prior convictions for child sexual exploitation, can result in a life sentence.

www.justice.gov/criminal/ceos/citizensguide_porn.html