Sex Crimes: Child Pornography Federal Statutes and Prosecutions
The elements of proof for most of the federal child pornography statutes are very similar, and with regards to the mens rea showing required regarding knowledge about whether what is being received, possessed or distributed is child pornography, the statutes are essentially identical. For example, to prove a violation of § 2252A(5)(B), the basic violation providing the lowest sentencing exposure for mere receipt or possession of child pornography, the government must prove all of the following essential elements beyond a reasonable doubt:
- First: That the Defendant knowingly received or possessed an item or items of child pornography, as charged;
- Second: That such items of child pornography had been transported, shipped or mailed in interstate or foreign commerce, including by computer, as charged; and
- Third: That at the time of such reception or possession the Defendant believed that such items constituted or contained child pornography …
Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Offense Instruction Number 75.4. However, even though § 2252A(5)(B), and the other federal child pornography offenses may be general intent crimes, the “Annotations and Comments” to the pattern instruction for all of these offenses specifically address the heightened mens rea requirement in prosecutions under these statutes and the prosecution’s burden as to the nature of the items received or possessed, noting that:
- United States v. X-Citement Video, Inc., 513 U.S. 64, [69-70], 111 S.Ct. 464, [467-6,130 L.Ed.2d 372] (1992) held that 18 U.S.C. § 2252(a)(1) and (2) requires proof of scienter as to the age of the performer. While the structure of §2252A(a)(1) and (2) is different (using “child pornography” instead of “visual depiction involving the use of a minor”), §2252A(a)(1) and (2) also contains as an element scienter as to the age of the performer.
- SeeUnited States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999) (the government must show not only that the individual received or distributed the material, but that he did so believing that the material was sexually explicit in nature and that it depicted a person who appeared to him to be, or that he anticipated would be, under 18 years of age.) [, overruled on other grounds by Ashcroft v. Free Speech Coal., 535 U.S. 234, 258, 122 S.Ct. 1389, 1406, 152 L.Ed.2d 403 (2002)].
See and compare,
Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Offense Instructions Numbers 75.1 (18 U.S.C. § 2252(a)(1) – Transporting, Shipping, or Mailing in Interstate or Foreign Commerce Visual Depictions of Minors Engaging in Explicit Sexual Conduct), 75.2 ((18 U.S.C. § 2252(a)(2) – Receiving, Distributing, Visual Depictions of Minors Engaging in Explicit Sexual Conduct that have Traveled in Interstate or Foreign Commerce or been mailed), 75.3 (18 U.S.C. § 2252A(a)(1) and (2) – Transporting, Shipping, or Mailing and Receiving or Distributing in or from Interstate or Foreign Commerce Any Child Pornography) 75.4. (18 U.S.C. § 2252A(a)(2)(A) and (5)(B) – Knowingly Receiving or Possessing Any Item or Items of Child Pornography That Has Been Transported, Shipped, or Mailed in Interstate or Foreign Commerce. Again, all have the same scienter requirements. See also, Tilton v. Playboy Entertainment Group, Inc., 554 F.3d 1371, 1378 (11th Cir. 2009) (Eleventh Circuit upholding district court’s finding that the scienter requirement found in §2252(a) and § 2252A(a) extends both to the sexually explicit nature of the material and to the age of the performer); see also and compare,United States v. Williams, 553U.S. 285, 294,128 S.Ct. 1830, 1839, 170 L.Ed.2d 650 (2008) (Rejecting challenge to 18 U.S.C. § 2252A(a)(3) which criminalizes the pandering or solicitation of child pornography as over broad under the First Amendment and impermissibly vague under the Due Process Clause, based on, inter alia, fact that scienter element of the statute requires prosecution to prove the defendant knowingly committed each element of charged offense, including that defendant knew children depicted in charged images and that children were engaged in sexual activity as defined by statute, reversing Eleventh Circuit Court of Appeals).
Defendants facing prosecution for violations of federal child pornography statutes need experienced and expert legal counsel to defend them in federal court. The failure to fully understand the law surrounding federal child pornography statutes, the applicable United States Sentencing Guidelines, and recent applicable federal case law, could prove catastrophic, and result will be almost certain conviction and a significantly longer sentence.
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