The National Center for Missing and Exploited Children (NCMEC) maintains a staff of 50 people in its headquarters in Washington, D.C., and in offices in four states (Texas, Florida, California, and New York) that receive tips and collect images provided by social media sites about child pornography. This information is referred to local law enforcement agencies whose Internet Crimes Against Children Units (ICACU) open prompt investigations—sometimes jointly carried out by local, state, and federal authorities. These investigations generally lead to the identification of suspects, issuance of subpoenas and search warrants, and eventual discovery of child pornography on electronic devices.
NCMEC’s work leads to a surprisingly wide array of individual suspects. For example, a tip from NCMEC led to the arrest this past January by the Texas Department of Public Safety of a 17-year-old teenager in Angelina County; and to the arrest last month of a six-year veteran police officer with the Houston Police Department.
These kinds of child pornography cases are often prosecuted at the state level and, more often than not, result in a stiff prison sentence. For example, the 10-year sentence imposed last month on a former Harris County Sheriff’s Department officer who was arrested in 2018 on four counts of possession of child pornography charges.
Texas Penal Code Section 43.26 defines child pornography as “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.” Texas Penal Code Section 43.25 defines sexual conduct as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any porton of the female breast below the top of the areola.”
There are four types of child pornography offenses in Texas: possession, receipt, production, and distribution/promotion of child pornography. Possession means having “actual care, custody, control or management” of visual material defined in Section 43.26 while “receipt” is defined as the acquisition or accessing by any means.
Production of child pornography, on the other hand, is defined by Texas Penal Code Section 21.15, which makes it illegal to videotape, photography, broadcast, transmit or record any visual image of a child without the child’s consent. This material must have the intent to sexually gratify or arouse another person.
Distribution or promotion of child pornography quite simply means the sending, selling, marketing or otherwise distributing Section 43.26 material to others. It does not matter whether any money or other payments are exchanged for the material. For example, the simple sharing of Section 43.26 material is considered distribution or promotion of that material.
The penalties for child pornography offenses are quite serious under Texas law.
Under Texas ‘ sentencing scheme, possession, receipt, or promotion of child pornography is considered a third-degree felony. If the defendant has one or more convictions for either offense or the victim in a promotion case is under 14 years of age, then the offense level is raised to a first-degree felony. Distribution of child pornography is a second-degree felony unless the child victim is under 13 years of age, which increases the offense level to a first-degree felony. The penalties for these three levels of felonies are:
- Third-degree felony: 2 to 10 years in prison with a fine of up to $10,000
- Second-degree felony: 2 to 20 years in prison with a fine of up to $10,000
- Third-degree felony: 5 to 99 years with a fine of up to $10,000
Child pornography is a crime that carries many consequences: loss of job/career, community shame and isolation, and breakup of family relationships; prison terms that range from 2 to 99 years (and life under certain circumstances) in a state prison system; possible civil commitment upon completion of the prison term; and lifetime sex offender registration.
Our measured advice is that anyone charged with a child pornography offense, or any sex offense, should exercise their right to remain silent and request a lawyer immediately when contacted by law enforcement. These are very complicated and serious cases, and an attempt to talk one’s way through a police investigation can be disastrous.