What is Child Pornography?

Under federal law, child pornography is defined as any "visual depiction" involving "the use of a minor engaging in sexually explicit conduct." Not all nude photos or movies involving children are illegal child pornography. The depictions must be "sexually explicit" which includes images of sexual activity as well as lewd or lascivious displays of the genitals. In a close case, it may be up to either the judge or the jury to figure out if an image is "sexually explicit." In practice, though, most of the material prosecuted is unambiguously pornographic.

In New York State, child pornography is known as “sexual performance by a child” and is prosecuted under Penal Law Article 263. Social scientists refer to child pornography or child sexual performances as “child sexual assault imagery” or CSAI.

Knowingly possessing, producing or trafficking in images of actual children engaged in sexual activity is a crime under both state and federal law. Federal law defines anyone under 18 as a child for these purposes. Under New York law, possession of a "sexual performance by a child" under 16 is a felony; promotion of a sexual performance by a child under 17 is also a felony. The First Amendment provides protection to defendants, but only where no actual child is involved in the production of the image. Images of actual children, even morphed images of real children, are not protected by the First Amendment.

At the same time, because of the First Amendment, child pornography offenses are not "strict liability" crimes like statutory rape: in order to convict a defendant, the government must prove that the defendant knew the material involved the actual abuse of a child (in statutory rape cases, it is not a defense that the defendant did not know the victim was underage). In most cases, though, knowledge can be proven easily if the photograph is realistic and depicts a young child. Again, close cases may be decided by a jury. For example, in a case our office tried a few years ago, the jury found that medical images of a pediatric vagina did not constitute child pornography because they were not “lascivious.”

While state laws vary, the Department of Justice publishes a Citizen's Guide to U.S. Federal Law on Child Pornography, which is available here.

How is Child Pornography Investigated?

Federal law enforcement agencies are very aggressive hunting down child pornography on the Internet and trying to link it back to Federal law enforcement agencies are very aggressive hunting down child pornography on the Internet and trying to link it back to people possessing it. Virtually everything you do on the Internet is recorded somewhere; any interaction you have with another person or website can be turned over to law enforcement, or worse yet, might be with an undercover officer. If you get a call from U.S. Customs (Department of Homeland Security), a U.S. Postal Inspector, or the F.B.I. about your "internet use" it is imperative that you hire a lawyer before you respond. Typically, the feds try to get a confession and a search warrant before they bring a case to court. Sometimes, prosecution can be avoided if no statement and there is no probable cause for a search warrant.

Most federal cases follow a fairly predictable pattern. The feds get tipped off about child pornography from foreign law enforcement, an internet service provider or website, or a family member or other eyewitness (the days of drugstores developing film are mostly behind us). They then can easily obtain user information from the internet service provider that provides service to the IP address involved in the suspicious activity. That information will include a physical address and a user's name. If there is enough evidence to obtain a search warrant, Homeland Security or the FBI will obtain a warrant from a judge and execute it. That usually means that about a dozen armed agents will appear at 6 a.m. at the address indicated. A female agent will be usually be present and will separate any children in the home from their parents. The lead investigator will attempt to interview the suspect. Most people talk in this situation: the agents hint that if you admit to something, you might not be arrested or the search might end sooner. Of course, the opposite is true: a statement in this situation often provides agents with the probable cause they need to arrest you.

Even if the agents cannot get a warrant to search your home, they may approach you for an interview. This often happens when too much time passes between the tip and the warrant application. Statements made in such an interview can provide probable cause for a search of your home or other location where child pornography might be found.

Once enough evidence is collected, the police, FBI or Homeland Security will make an arrest. In some cases, they will permit the suspect to surrender voluntarily. The arrest begins the court process and is followed by an arraignment before a judge, bail proceedings, discovery, plea negotiations, and, if necessary, trial, sentencing and appeals.

Do People Who Possess Child Pornography Have to Register as Sex Offenders?

Yes. All child pornography offenses require sex offender registration in New York State and under federal law. If you have been convicted of possession of child pornography (which is called "sexual performance by a child" under state law) and live in New York State you have to register, even if your conviction was federal or from another state.

There are three "levels" of registration, each carrying different consequences. For example, Level One or low-risk offenders are not routinely listed on the state's website. High risk offenders are not only listed, but must report to the police every 90 days for life.

The rules regarding the level of registration are changing rapidly. Before 2012, the courts held that all child pornography offenders were "presumptively" at SORA Risk Level Two, which requires lifetime registration and publication on the internet. The New York Board of Examiners of Sex Offenders appears to have overruled that holding but a new set of cases in 2014 from the Court of Appeals all but directed courts to disregard the Board's approach. If you have been convicted of a child pornography offense and have to register, check out our What's New pages covering child pornography or call our office at 212-685-0999 for the latest information on sex offender registration for people convicted of child pornography offenses.

What is a Digital Forensic Examination?

Child pornography cases almost always involve electronic evidence. Illegal child pornography can be found on a computer hard drive, cell phone, external drive, thumb drive or any other device capable of storing data. Most child pornography is easy to find on these devices but some users hide the material, encrypt it, or delete it. That's where the forensic examination comes in.

A digital forensic examination refers to a process of accessing the data and organizing it, wherever it may be found on the device. These days, an Israeli company called Cellebrite dominates the market in offering software and hardware that can be attached to a cell phone or hard drive and extract the data from it. Cellebrite can often access even encrypted or deleted data. Once the data is extracted, it can be searched using "hash values" -- individual digital fingerprints -- for known child pornography, which is kept in a database for law enforcement by the National Center for Missing and Exploited Children.

In order to conduct a forensic examination of a digital device, police normally need either a search warrant or consent. It is almost never in an individual's interest to consent to a forensic examination. A warrant must be supported by probable cause, meaning that a reasonable person would have reason to believe that the material, which is evidence of a crime, is present on the device. One of the few ways to defeat a child pornography case is to show that the forensic exam was illegal, done either without consent or without a valid warrant.

What are the Penalties for Child Pornography?

Penalties for child pornography offenses are shockingly high: in federal cases, prison time is the norm, even in cases of mere possession. In state courts in New York City, mere possessors are occasionally given probation, but imprisonment is common. Federal cases involving receipt or distribution of child pornography -- for example, emailing a single image to an undercover agent -- carry a mandatory minimum five-year sentence in federal prison. Maximum sentences range from twenty years to life imprisonment. In New York, lifelong sex offender registration almost always follows a conviction for possession of child porn.

If you are accused of possessing, distributing or producing child pornography, no one can tell you from the outset whether you will go to prison, or for how long. You should immediately consult with an attorney experienced in defending child pornography cases. That said, below are the sentences for some commonly charged child pornography offenses that apply as of late 2019. Sentences change often and it is essential to consult a lawyer for the latest, most applicable information.

Federal Child Pornography Sentences. The punishment for the lowest-level child pornography crime in federal court, possessing or "accessing with intent to view" child pornography under 18 U.S.C. Sec. 2252(a)(4), is capped at ten years, unless the material depicts a prepubescent minor or a person under twelve years old, in which case the maximum sentence is twenty years. Note that to be convicted, the defendant must "knowingly" possess or access the material, which has been interpreted to mean that he or she must know that the material depicts a child under 18, or who is prepubescent, or who is under 12. However, if the defendant has a prior conviction for a sex crime (including child pornography or a state offense), the minimum penalty is ten years in prison and the twenty year cap applies regardless of the age of the child depicted. Even though no minimum applies to simple possession, the U.S. Sentencing Guidelines are very high, usually recommending a sentence near the statutory maximum. While the Sentencing Guidelines are not binding on judges, they must be calculated and tend to pull child pornography sentences higher than they would otherwise be. A federal child pornography lawyer can help you determine the applicable Guideline range, which you should do before deciding to accept any plea.

Almost any case of possession, however, can also be charged as "receipt," which carries the same penalty as distribution under 18 U.S.C. Sec. 2252(b)(1): five to forty years. If a defendant pleads guilty or is convicted of receipt or distribution of child pornography, the judge is required to sentence him to at least five years in prison. You should not plead guilty to a child pornography charge unless you understand exactly how the mandatory minimum and Sentencing Guidelines apply.

Under federal law, production of child pornography is charged as "sexual exploitation of a child" and carries a fifteen-year mandatory minimum sentence under 18 U.S.C. Sec. 2251. This statute applies to a person who takes a single sexually explicit photograph of any child under 18 years old, even if he does not know the child's age.

New York State Child Pornography Penalties. Under New York State law, child pornography is called "sexual performance by a child" and can be charged as possession under Penal Law Sec. 263.11. Possession of a sexual performance by a child is an E felony, punishable by a maximum sentence of up to four years' imprisonment.  No mandatory minimum applies, but felony probation under this provision is ten years. Figuring out the actual time served under New York law is complicated because, under this type of sentence, release on parole is available shortly before a person completes one-third of the maximum sentence imposed.

Promotion, distribution, or receipt of a sexual performance by a child is a D felony, which carries a maximum penalty of seven years in prison.

Under New York state law, these prison terms may be substantially higher if the defendant has a prior criminal record, which can also trigger mandatory minimum penalties in some circumstances.

Collateral Consequences. In addition to possible prison time, all child pornography convictions carry monetary penalties and automatically trigger sex offender registration. A child pornography conviction makes it impossible to get many jobs. During parole or probation, there may be limits on where you can live, whom you can live with, and how you can use electronic devices. You may be subject to mandatory therapy and polygraph testing. In certain cases, a child pornography conviction can put you at risk for civil commitment, i.e. involuntary, long-term commitment to a secure mental hospital. There are many more collateral consequences to a child pornography conviction which should be carefully researched and analyzed prior to deciding whether to accept a guilty plea or proceeding to trial.