What is child pornography in federal charges?
Breakdown of 18 U.S. Code § 2256
The definition used in federal criminal cases is found at 18 USC § 2256(8). “Child pornography” is defined as any visual depiction of sexually explicit conduct, where:
- the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct;
- the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
- such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
In the context of federal charges, visual depiction are:
- computer or computer-generated images or pictures
It does not matter whether the visual depiction is made or produced by electronic, mechanical, or any other means. This includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.
Minor or Child
Unlike the age of consent for actually engaging in consensual sexual acts, in the context of possession or production of child pornography a “minor” is any person under the age of eighteen years. (18 U.S. Code § 2256).
Sexually Explicit Conduct
Included in the federal definition of child pornography is “sexually explicit conduct.” This term has two meanings. The first applies to all visual depictions and the other applies to digitally generated visual depictions. Sexually explicit conduct as it applies to all visual depictions is:
- sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
- sadistic or masochistic abuse; or
- lascivious exhibition of the genitals or pubic area of any person.
For digital images, computer images, or computer-generated images that are indistinguishable from a minor, sexually explicit conduct is:
- graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited
- graphic or lascivious simulated bestiality
- graphic or lascivious simulated masturbation
- graphic or lascivious simulated sadistic or masochistic abuse
- graphic or simulated lascivious exhibition of the genitals or pubic area of any person
As it relates to sexually explicit conduct, “graphic” means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.
Usually when we consider the term “produce” related to video or images, we think of the managerial aspects of production. You may also think of actually creating. Production as it relates to federal child pornography charges includes producing, directing, manufacturing, issuing, publishing, or advertising.
Possession, receipt, production, or distribution of child pornography can lead to very serious federal charges. If convicted in federal court, someone could be facing a substantial prison sentence and a lifetime of supervision or registration.
Cody L. Cofer
If you need more information about child pornography charges pending in federal court, contact Cody Cofer. He is a former Assistant Federal Public Defender. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Let him help you, today.