Child pornography is a crime that is taken seriously by law enforcement everywhere, including Texas. Anyone who flips through the news will see that arrests happen in the state on a regular basis. What exactly is the legal definition of “child pornography”? And if someone is convicted, what is the sentencing?
WHAT CONSTITUTES ‘CHILD PORNOGRAPHY’?
It’s important to understand what is and is not child pornography, as defined by the Texas Penal Code. Not every visual depiction of a nude minor would be considered pornography. Section 43.26. Possession Or Promotion Of Child Pornography states that child pornography is “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.”
In the eyes of the law, “sexual conduct” is not limited to penetrative intercourse. According to Section 43.25. Sexual Performance By A Child, sexual conduct is defined 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 portion of the female breast below the top of the areola.”
WHAT HAPPENS IF I’M ARRESTED FOR CHILD PORNOGRAPHY?
When someone is arrested for the possession or promotion of child pornography they need to take these charges seriously, no matter how ludicrous or outrageous it seems. Sex crimes that involve children carry a stigma in our society. There is a good chance that the accused’s name will make the news after an arrest. Defendants who are charged with sex crimes like these need a defense attorney to represent them from day one.
An experienced attorney can handle the media attention and speak to the press if it’s in their client’s best interest. And no matter what charges a defendant faces, they have the right to competent legal representation and a fair trial.
You can be charged either in the State level or the Federal level. If your home is raided, via search warrant, the local authorities will be present and sometimes, the Federal authorities will be present during the search of your residence / business office. However, the mere fact that the local authorities are present during the search warrant does not mean that your case will be filed at the local level as opposed to be prosecuted at the Federal level.
WHAT IS THE SENTENCING FOR CHILD PORNOGRAPHY?
Both the possession and the promotion of child pornography are classified as felonies in Texas. Whether a defendant could have a first, second, or third degree felony charge depends on several factors. Having a prior criminal record and certain charges of promoting child pornography may result in enhanced penalties.
PRISON TIME & MONETARY FINES
The prison time and monetary fines for felony convictions are laid out in Chapter 12. Punishments. Even a third degree felony conviction can land someone in jail for up to 10 years. In addition, all felonies in Texas can come with a fine of up to $10,000.
If you are arrested and charged with Possession of Child Pornography in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2) and almost always, a person will be charged with Transportation of Child Pornorgrahy in violation of 18 U.S.C. 2252A(a)(1) and (b)(1). Merely having viewed child pornographic images, can subject a person to a two (2) count indictment in the Federal judicial system. Many attorneys only practice in the State level and they do not understand the Sentencing Guideline, Motion for Downward Departure and motions to suppress in the Federal level. In addition, at the Federal level, there are no plea agreements with the Federal prosecutor, instead, your defense attorney and the Federal prosecutor may enter into a Rule 11(c)(1)(C) agreement. If you are seeking legal advise from a criminal defense attorney and he/she states that the Federal prosecutor will offer a plea agreement, get up and walk out, they do not know that they are talking about.
The minimum and maximum penalties for Possession of Child Pornography in the Federal system is imprisonment for not more than 10 years but if any image of child pornography involved in the offense involved a prepubescent minor or minor who had not attained 12 years of age, such person shall be imprisoned for not more than 20 years, fine of $250,000.00, supervised release of 5 years and many other requirements, including but not limited to registration as a sex offender.
The minimum and maximum penalties for Transportation of Child Pornography in the Federal system is imprisonment for not less than 5 years and not more than 20 years with the same fine at Possession of Child Pornography and conditions, as well as registration as sex offender.
Many defense attorneys have never heard of the case Vineyard v. State which allows the State prosecutors to drastically increase a persons exposure to jail time that could result in several life sentences for uploading and/or possessing child pornography. In Vineyard v. State, 958 S.W.2d 834 (Tex. Crim. App. 1998), the Court of Criminal Appeals ruled that “possession of each item of child pornography is an allowable unit of prosecution.” This means a criminal defendant with 100 images of child pornography on their computer can be charged with 100 counts of possession of child pornography – such drastic sentencing can result in a person receiving a life sentence on a case that could also be counted as one count.
TEXAS SEX OFFENDER REGISTRY
In addition to prison time and monetary fines, a child pornography conviction usually requires registration on the Texas Sex Offender Registry. There is an inherent lack of privacy that comes with being on the registry. The information on the state’s sex offender list is available to the public:
- Full legal name, as well as any nicknames or aliases
- Date of birth
- Home address
- Names and addresses of any higher education institutions the person attends
- A color photograph
- Physical description: height, weight, hair color, ethnicity
- Information about the offense(s):
- Victim’s sex and age
- Crime committed
- Disposition date
- Judgment information
- How long the person is required to be on the registry
- The offender’s “risk level” will be noted as either low, medium, or high. The risk level takes into account whether the person is a “danger to the community” and how likely they are to “engage in criminal sexual conduct.”
Individuals who are on the Texas Registry are automatically included on the National Sex Offender Registry as well.
A child pornography conviction has intangible consequences, as well. A felony record closes the door to certain employment opportunities and sometimes even entire industries like healthcare or education. People with felonies on their record may have a difficult time finding a landlord who will rent to them.
A child pornography conviction can impact relationships, including friends, family, and even the defendant’s young children. Anyone convicted of these crimes may be restricted from seeing their own children and visiting places like school, sporting events, and daycare.
CAN A MINOR BE CHARGED WITH A CHILD PORNOGRAPHY CRIME IN TEXAS?
The short answer is, “Yes.” However, the Texas Penal code doesn’t use the term “child pornography” for crimes in which minors create, send, or receive explicit photos of themselves or other minors. Section 43.261. Electronic Transmission Of Certain Visual Material Depicting Minor discusses the legalities of a minor who creates or distributes visual material of “another minor engaging in sexual conduct.”
Crimes committed under this section of the Texas Penal Code are misdemeanors. A minor could be looking at enhanced charges if they create or distribute material that is meant to “harass, annoy, alarm, abuse, torment, embarrass, or offend another.” These types of photos and videos are commonly called “revenge porn.”
There are affirmative defenses for Section 43.261:
- An underage person who creates and shares sexual content of themselves with their spouse
- Minors in certain close-in-age dating relationships who share sexual content of themselves with each other
- Minors who receive unsolicited visual material and then destroy that material “within a reasonable amount of time”
Parents in Texas should speak with their teens about this law and its potential ramifications. “I didn’t know that sending nude selfies was illegal,” is not an affirmative defense. A criminal conviction is a high price to pay for a teenage lapse in judgment.
CHILD PORNOGRAPHY DEFENSE ATTORNEY IN PLANO, TX
If you’ve been arrested for child pornography, your first call should be to Attorney Kent Starr. Mr. Starr is not only an experienced sex crime defense attorney; he is also a Plano, TX bail bondsman. You can contact him 24/7, post bond, and immediately start legal representation.
A child pornography conviction will follow you for the rest of your life. It’s important that you hire an aggressive attorney who won’t just automatically accept the first plea bargain offered to you. In some cases, going to trial is exactly what you need to achieve the best possible outcome. Choosing the right criminal defense attorney will impact the outcome of your case. Attorney Starr invites potential clients to sit down and discuss the outcomes of similar cases that he’s handled. This is a matter of public record, and he is happy to share his track record with you.
Read through Attorney Kent Starr’s Google Reviews, and then call us at (214) 982-1408 to schedule a free consultation.