The first federal child pornography law, Sexual Exploitation of Children Act, was enacted in 1978. Years of legal development have made any sexual exploitation a serious federal and state violation
This development began following the 1982 U.S. Supreme Court decision, New York v. Ferber, which held that child pornography is not protected by the First Amendment; that it is clearly distinguishable from obscenity and, therefore, must be held to a different standard.
Two years after Ferber, Congress enacted the Child Protection Act which raised the age of a minor cover by child pornography legislation to 18.
In 1986, the U.S. Supreme Court entered the child pornography with United States v. Dost that expanded the definition of child pornography to include sexually suggestive depictions of a lascivious nature.
In 1988, Congress placed child pornography in the area of social concerns born out of the new “technology age” with the Child Protection and Obscenity Enforcement Act that made it illegal to depict or advertise child pornography.
Again, two years after this congressional action, the U.S. Supreme Court for a third time dealt with the increasing child pornography problem with Osborne v. Ohio that made the private possession of child porn illegal.
Four years after Osborne, Congress once again expanded the definition of child pornography with the Child Protection Act to include visual images of children and images that appear to be of a minor.
By 1998, the Internet had become an established child pornography venue. Congress responded to this “threat” with the Child Protector and Sexual Predator Punishment Act. This legislation requires Internet Service Providers (ISPs) to report known incidents of child pornography to law enforcement authorities, but stopped short of requiring ISPs to monitor customers or sites.
In 2002, the U.S. Supreme Court seriously undermined the Child Protection Act with Ashcroft v. Free Speech Coalition that held visual images are not pornography and that those which “appear to be a minor” is too broad to be constitutional.
A Case Example of Today’s Child Porn Reality.
Recently, a Texas man was sentenced to 180 months in a federal prison after pleading guilty to charges of child pornography distribution. That’s 15 years of his life.
In June 2015, the Corpus Christi Police Department ‘s Internet Crimes Against Children Task conducted a search with a warrant of the possessions of Jorge Betancourt, 37, which found over 500 videos and 500 images of child pornography from over 11 years of software usage on his digital devices. The United States Immigration and Customs Enforcement’s Homeland Security Investigations were also involved in the investigation.
Betancourt was arrested in October 2015.
In March 2016, he entered a guilty plea and was issued his sentence in May.
He will be moving shortly to a federal facility. His sentence includes 15 years of supervision after his release and restricted access to children and the Internet.
And, of course, he must add his name and information to the sex offender registry.
Child Pornography Convictions and Sentences
Looking at Betancourt’s sentence, we can tell that child pornography is not a matter that is taken lightly in court. But there is not just one charge for those caught with or involved in the creation of child pornography. Different circumstances based on the defendant’s role in a child pornography scheme, the age of the children involved, and the defendant’s history, are all important factors in determining the defendant’s sentence.
The following include the charges, classifications, and possible sentences for different crimes related to child pornography, along with the classification and sentence when the minor involved is under the age of 14.
Please note that these are specific to Texas state law. When trafficking or distribution goes over state lines, like in the case of Betancourt, you may be looking at federal sentencing.
- Employing a Minor: Forcing, coercing, or trafficking a minor to produce child pornography. Second degree felony; 2-20 years in state prison and/or a fine of up to $10,000. If the minor involved is under the age of 14, it becomes a first degree felony; 5-99 years in state prison and/or a fine of up to $10,000.
- Production & Promotion: Knowingly are involved in filmmaking, photography, production, or promotion of child pornography. Third degree felony; 2-10 years in state prison and/or a fine of up to $10,000. If the minor involved is under the age of 14, it becomes a second degree felony; 2-20 years in state prison and/or a fine of up to $10,000.
- Intentional Possession: Knowingly possessing child pornography. Third degree felony; 2-10 years in state prison and/or a fine of up to $10,000.
- Possession with Intent to Distribute: If you are found with over 6 identical pieces of child pornography, the law has the right to assume you had intent to distribute that pornography. This is a second degree felony; 2-20 years in state prison and/or a fine of up to $10,000.
Upon being convicted of any of these crimes, you must register with the sex offender registry. This is a public record, and can be accessed by anyone who is able to conduct a quick Internet search. The registry also limits where a registrant is allowed to work and live.
In an earlier blog post, we mentioned how easily this can force registrants to leave their small towns, their family, and their friends.
Betancourt’s actions will severely affect the rest of his life. He may be well into his 50s before he will be released from prison, and his status on the sex offender registry will continue to follow him until his death.
As the child pornography industry grows, investigations are on the rise as well, and sentences continue to become more and more harsh. If you have been charged or may be charged with crimes related to child pornography, you must craft an effective defense immediately. Consult with an experienced Texas criminal defense lawyer today.