Florida Child Pornography Defense Lawyer
What does it mean to get charged with possession of child pornography on your computer?
This is covered in Florida under Statute 827.071, which is entitled “Sexual Performance by a child; Penalties”. It makes it illegal for any person to do any of the following:
- Use a child in a sexual performance if, knowing the character and content, the person employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance, or, being a parent or legal guardian, consents to the participation by the child in sexual performance. “Performance” is any play, motion picture, photograph, or dance or any other visual representation shown before an audience.
So this portion of the statute makes it a crime (a second degree felony – punishable by up to 15 years in prison) to get a child, whether it is one over whom the person may have some legal authority, or not, to perform on any medium any sexual conduct. The key here is the sexual nature of the performance; a nude of a child is not by definition necessarily a “sexual performance”. Note that the definition of a child is anyone under 18, which gets into the question of teens exchanging explicit or graphic photos of each other, or sexting; this will be addressed below.
- Promote a sexual performance by a child when, knowing the sexual character/content of the performance, the person produces, directs or promotes the performance which includes sexual conduct by a child less than 18. This is also a second degree felony.
- Possess with the intent to promote any photograph, movie, exhibition, show, representation which includes any sexual conduct by a child. Possession of three or more copies of the photo, movie, etc. is prima facie (evidence sufficient on its face) evidence of intent to promote. This is a second degree felony.
- Knowingly possess, control or intentionally view a photograph, movie, “exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part,” the person knows to include any sexual conduct by a child. Possessing of each individual photo, movie, representation etc., is a distinct separate offense. Also, if the representation includes more than one child it is charged as a separate offense for each child depicted. Each offense is a third degree felony, punishable by up to five years in prison.
This last section contains what most understand as possession of child pornography. The possession must be knowing; in other words just having child pornography images on your computer is not enough; law enforcement must establish (by proof beyond a reasonable doubt) that you were the person that put the images on your computer, and that you did so knowingly. If someone sent an email with images attached but you weren’t aware of the content of the pictures until you opened them, and you did not ask that they be sent, that can pose problems in establishing the “knowing” aspect of the crime. Another way to prove the crime is to establish that you knowingly viewed the images – again, just having them on your computer isn’t enough if they were never opened and viewed, and viewed knowingly. Law enforcement computer specialists are able to establish, by copying a person’s hard drive and analyzing it, if the individual images were actually opened at some point. But they would have to establish that the person being charged was the only person with access to the computer, since anyone can use your computer to download things and the person charged may not be aware.
It is important to note here that if law enforcement has a warrant to take your computer there is nothing you can do to stop them at that point, but if they want to talk to you about your computer and who uses it, etc., it is your absolute right to respectfully decline to talk to the police until you’ve conferred with your lawyer. Law enforcement will try to exert pressure (it is their job to make their cases and get information or even an admission/confession from the person they suspect) but it is very important that you exercise your right to remain silent until you speak to your lawyer. Even if they just want to talk to you, and do not mention “miranda warnings”, politely decline, and say something along the lines of “I’d be happy to speak with you with my lawyer present.” Then the lawyer can take control of the situation and control any information given to the police based upon whether it will help you or not.
Finally, note that while this is a third degree felony rather than a more serious second degree felony, each individual photo or movie is separate third degree felony. So if the person has 10 photos or movies that constitute sexual performance, that is 10 separate felony charges. Likewise if each picture or movie contains two children engaging in sexual performance, it is a separate felony for each child involved; one photo with two children in it can result in two felony charges. These felonies add up quickly to significant prison time.
Contact Our Possession of Child Pornography Defense Attorney in Central Florida
If you have been charged with possession of child pornography in your computer in Orlando, Winter Park, Kissimmee or anywhere in Central Florida, we strongly suggest that you contact a highly skilled criminal defense attorney who has the knowledge and experience to handle these complex cases. We handle thousands of criminal cases including child pornography possession cases. Contact us today for a free consultation and to understand the options available to you. Call us at 407-648-0006 or fill out our online form located at the top of the page and we will contact you shortly. We respect your privacy and will keep all your information confidential.