Child pornography has some of the most serious penalty systems in the state of Ohio. Many accused individuals feel the presumption of evidence is forgotten in these types of cases and find it difficult to combat these serious charges that are often based on lies, entrapment, and schemes to lure people to trick websites. Even an accusation of this crime absent criminal charges can negatively impact your life, career, and reputation.
Your best chance to successfully defend yourself against these charges is to work with an experienced Cincinnati sex crimes defense lawyer who will mount an aggressive sex crime defense on your behalf. The Wieczorek Law Firm defends clients throughout Ohio who have been charged with child pornography or other sex crimes. Contact us 24/7 at (513)-317-5987 for a free case review.
What Is Child Pornography?
The first step to defending yourself against child pornography charges is to understand the definition of this term. Ohio defines child pornography as any obscene material involving, any sexually oriented matter involving or any material that is harmful to a juvenile.
Charges related to child pornography in Ohio include the following:
- Pandering obscenity with a minor – Creating, reproducing, publishing, promoting, selling, delivering, displaying, producing, creating or bringing into the state any obscene material that has a minor or impaired person in it
- Pandering sexually oriented matter involving a minor – Creating, recording, photographing, filming, reproducing, publishing, promoting, directing, producing, presenting or bringing into the state any material that shows a minor participating in sexual activity, masturbation, or bestiality
- Illegal use of a minor nudity-oriented material or performance – Photographing a nude minor child other than their own in a state of nudity or creating, directing, producing or transferring any material or performance that is to be sold, possessed or brought into the state or consenting to the same
Ohio’s Sexting Law
Sexting is one way that a person may find themselves subject to Ohio’s child pornography laws is to create, possess, or send pictures or videos of a minor who is nude or engaged in sexual activity, colloquially known as sexting. Under Ohio’s law, it does not matter if the minor consented to the material being shared or if the recipient is also a minor, they can still be charged with violating Ohio’s child pornography laws. Even the minor could be found to run afoul of the law by possessing or sending explicit material.
Penalties for Child Pornography
Under state law, a person found in violation of Ohio’s child pornography could face the following penalties, depending on how the crime is charged:
- Second-degree felony – Up to eight years in prison, a maximum fine of $15,000
- Third-degree felony – Up to five years in prison, a maximum fine of $10,000
- Fourth-degree felony – Up to eighteen months in prison, a maximum fine of $5,000
Additionally, the defendant will likely be required to register as a sex offender. The potential penalties and whether the crime is charged as a second, third, or fourth-degree felony depends on factors such as:
- The number of images or pieces of material involved in the case
- If a computer was used
- The victim’s age
- Whether the offense involved a pattern of sexual exploitation of a child
- Whether you distributed or shared the images
- Your previous criminal record
Additionally, you could be charged with federal crimes and subject to even stiffer penalties.
Federal Child Pornography Under Ohio
Federal Child Pornography Statute (18 U.S.C. § 2251)
Federal cases typically divide defendants into two categories:
- (1) those who allegedly commit production offenses, in which the
defendant advertises for minors to appear in child pornography photos,
videos, or other materials; and - (2) those who allegedly engage in distribution and collection
offenses, without producing them (“non-production” offenses).
18 U.S.C. §2251 – Sexual exploitation of children provides:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).
(2)The circumstance referred to in paragraph (1) is that—
(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or
(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail.
(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering—
(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct; shall be punished as provided under subsection (e).
(2)The circumstance referred to in paragraph (1) is that—
(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.
(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.
Federal Elements of Child Pornography Charges
Knowing Possession of Obscene Material — Commission of the crime of child pornography involves physical possession and/or access to sexually explicit materials involving minors via the Internet. The prosecution must prove that either the defendant had possession of the illicit material or accessed it with an intent to view it. Therefore, under federal law, accessing the material alone, without downloading or keeping the images, still subjects the defendant to culpability under federal law.
Possession of Child Pornography — An Offense Under 18 U.S.C., Chapter 110, § 2252
When a defendant acts with knowledge and intent to view films, books, articles, computers disks, videos or any other sexually explicit material involving a minor, the defendant can be subjected to severe penalties and a possible prison term of up to ten years. If, however, the material depicts a prepubescent minor under age 12, the prison term increases to 20 years. However, ultimately the Federal Sentencing Guidelines will offer the court guidance as it relates to sentencing.
Production of Obscene Material Involving Minors Engaging in Explicit Sexual Conduct
A minor is defined as anyone under the age of 18. The definition of“sexually explicit material” is vague, though it generally means engaging in sexual intercourse or other sex acts, the lascivious display of genitals or pubic area, or a simulation of these acts. The judge or the jury (depending on which is the trier of fact) must determine the classification of the images.
There are exceptions however…
Any depictions that have either, literary, educational, artistic, political, or scientific value are not considered child pornography under federal law.
Distribution of Child Pornography Offense Under Federal Law
This offense includes the knowing distribution, sending, transport, shipping, copying for distribution, and receiving of child pornography, including via the Internet.
Distribution and Sale of Child Pornography
18 U.S.C. Chapter 110 § 2252 prohibits the knowing transport, distribution, or sale of visual depictions of lewd conduct involving minors (child pornography). First offenders face 5 to 20 years in prison, and those with prior offenses can expect a sentence of no less than 15 and up to 40 years. However, once again, the Federal Sentencing Guidelines would heed guidance to the court for sentencing purposes.
Contact a Cincinnati Child Pornography Lawyer for Dedicated Legal Assistance
If you are facing child pornography charges, contact a Cincinnati defense attorney at The Wieczorek Law Firm can help. Contact us at (513) 317-5987 for help.
The Prosecution’s Burden of Proof Under Federal Law
The prosecution’s “beyond-a-reasonable-doubt” standard involves the following:
(1) that the defendant knowingly possessed or accessed material containing or depicting visual images of minors engaged in sexually explicit conduct; and
(2) that the aforementioned activity took place within the United States or otherwise satisfies the requirements for the imposition of federal law; and
(3) that the production of the material involved a minor or minors engaged in sexually explicit conduct; and
(4) that the defendant knew of the nature of the content
Affirmative Defense to Child Pornography Under the United States Code (18 U.S.C. §2252)
The defendant possessed less than three (3) depictions of pornography, allowed access to each visual depiction, or took reasonable, good faith steps to destroy the material and then report the matter to a law enforcement agency.