Child Pornography Laws
Sweeney and Associates has handled high profile child pornography cases which have received not only national but international media coverage in the cases of Robert Diduca and Geoffrey Portway. We have also handled numerous cases in State and District Courts in this area. When you are faced with charges involving child pornography the laws are harsh and it is extremely important that you hire an experienced attorney familiar with both Massachusetts Child Pornography Law and Federal Child Pornography Law. At Sweeney and Associates we have handled Child Pornography and Sexual Assault cases both in state courts and federal courts and are very knowledgeable in this area.
Depending on the charges, Possession of Child Pornography, Production of Child pornography or Distribution of Child Pornography, as well as the type and amount of material you possess, you may be charged in a District or Superior Court in Massachusetts or your case could be taken over and brought directly into Federal Court. Some cases may start out in District Court but then the Federal Government will take over the case and charges will be brought in Federal Court due to the type of images you possess, the amount, whether you have been distributing these images by trading online or engaging in Peer to Peer Networks. Do to the level of investigatory resources the Federal government has allocated to investigate these crimes your case may well begin and remain in Federal Court. Peer to peer networks and chat rooms are self monitoring and reporting potential violations to the police and the police and federal agencies have agents who also monitor these sites and track IP addresses right back to your computer. They then come with a search warrant and seek to question you and most clients end up hurting their case fatally by giving a statement to the police during these searches instead of invoking their 5th Amendment privilege to remain silent and not answer any questions. Because of this, it is important to hire an attorney experienced with handling these types of charges in any court.
With any case involving child pornography, our primary goal is always to fight the charges against you and force the government to prove not only that it was your computer but that it was actually you using the computer to download or distribute images or videos. Note that in one case that we were involved with the police raided the wrong home, arrested and charged the occupant with Child Pornography charges and it took months before he was cleared when it was proven that a neighbor was using his wireless router to access the internet.
At Sweeney and Associates we are very proactive in fighting these charges. We begin by filing motions to obtain all the discovery information available including copies of the hard drive(s) of your computer because discovery is a key component in Child pornography cases. Generally, the charges are based on the Commonwealth or Government tracking your chat room conversations, Peer to peer networking exchanges, IP address, and/or your email address where photographs or videos were sent or received. Being knowledgeable in the field of technology and having a computer expert on hand allows us, in some cases, to discredit the reliability of the tracking technology and provides the defense that it was another individual responsible for the possession or distribution of child pornography.
After we obtain and review all the discovery, cases generally follow one of two paths. In some cases, we can proceed with filing a motion to suppress certain evidence or the search warrant. We can also file motions to dismiss based on our review of the discovery including if the images do not meet the statutory definition of child pornography (see below) or if the person depicted appears to be of age. In other cases, due to the evidence in their possession, including any statements you may have made to the investigators, we must try to reach an agreement with the prosecutor known as a plea agreement.
While our main goal is always to keep you from being convicted, we are also very well aware of the stigma associated with these kinds of charges and the collateral consequences including having to register as a sex offender if you are convicted at trial. If negotiating a plea is in your best interest and you agree, then we will discuss your case with the prosecutor. We have been successful in reducing or amending certain charges so that a person receives only probation and/or does not have to register as a sex offender. (NOTE this is not a promise that this will happen in your case as each case is different and attorneys cannot promise any outcome in any particular case. Past achievements are not promises of future achievements.)
Below is a chart depicting the most common charges a person will face in both state or federal court and the punishment for each charge. Please note this is not an exhaustive list and for those offenses that increase incarceration time based on prior convictions, there are only certain convictions that qualify for the increase in incarceration time.
STATE STATUTES AND PUNISHMENTS
| G.L. c. 272 29A Production of Child Pornography | State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000 fineORBoth incarceration and fine |
| G.L. c. 272 29B Distribution of Child Pornography(depiction of a person under 18 in a state of nudity or engaged in a sexual act) |
State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000fineOR3x
the economic gain from distributing the imagesOR
Both incarceration and fine |
| G.L. c. 272 29C Possession of Child Pornography |
State prison not more than 5 years ORHouse of Correction not more than
2.5 yearsOR
$1,000-$10,000 fineOR Both incarceration and afineMust register as a sex offenderCase Cannot Be Continued Without A Finding |
FEDERAL STATUTES AND PUNISHMENTS
| 18 U.S.C. § 2251(a) Sexual Exploitation of a Child | Not less than 15 years nor more than 30 years for first convictionNot less than 25 nor more than 50 years if second convictionNot less than 35 years nor more than life if third or subsequent convictionANDFine imposed |
| 18 U.S.C. § 2252(a)(2) Distribution of Child Pornography | Not less than 5 years nor more than 20 years for first convictionNot less than 15 years nor more than 40 years if prior convictionANDFine imposed |
| 18 U.S.C. § 2252(a)(4)(B) Possession of Child Pornography |
Not more than 10yearsORFine imposedORBoth incarceration and a fineNot more
than 20 years if the child is under 12
AND Fine imposed Not less than 10 years nor more than 20 years if second or subsequent conviction AND Fine imposed |
Most states mirror the Federal Laws on Child Pornography found in 18 USC § 2256:
For the purposes of this chapter, the term—
(1) “minor” means any person under the age of eighteen years;
(2)
(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;
(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—
(i) 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;
(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;
(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;
(4) “organization” means a person other than an individual;
(5) “visual depiction” 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;
(6) “computer” has the meaning given that term in section 1030 of this title;
(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;
(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such 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
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
(9) “identifiable minor”—
(A) means a person—
(i)
(I) who was a minor at the time the visual depiction was created, adapted, or modified; or
(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
(ii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and
(B) shall not be construed to require proof of the actual identity of the identifiable minor.
(10) “graphic”, when used with respect to a depiction of sexually explicit conduct, 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; and
(11) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
Even though the federal statutes state the length of incarceration, it is important to note that an individual’s sentence in Federal Court is governed by the Federal Sentencing Guidelines which contain “enhancements” based on the nature and number of images, whether a computer was used, the age of the child and other such issues that arise in almost every case. Federal Judges are not generally pleased with these enhancements and have deviated from them to reduce the defendant’s jail time. You want an attorney that is aware of these and will negotiate on your behalf to reduce the penalty. While judge’s have discretion to deviate from the Guidelines by either increasing or decreasing an individual’s sentence, most often the judge will sentence an individual based on the Guidelines calculation. The Federal Sentencing Guidelines determine a person’s sentence by starting at a base level for the specific charge and then the sentence is either increased or decreased based on a variety of factors. A person’s criminal history is also taken into account in determining one’s sentence. A person’s sentence is also reduced if they take responsibility for their crime by pleading guilty. Attorneys at Sweeney and Associates are knowledgeable in how to calculate a sentence under the Guidelines which is invaluable in determining whether or not your best option is to proceed with a trial or accept a plea agreement.
Attorney Richard Sweeney is experienced and knowledgeable in every aspect of child pornography charges. It is vital to your future and liberty that you hire reputable and experienced attorneys to handle your case. If you are facing these charges, contact Sweeney and Associates at (617) 300-0212 or email us at RSweeney@RSweeneylaw.com today and let us help you navigate the system and obtain the best result possible. This type of charge affects you and your whole family and we are experienced and can provide you and your family with the resources and help necessary to deal with these charges.