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Citizen's Guide to United States
Federal Child Exploitation Laws
Child
Pornography
Child pornography is defined by law as the visual depiction of a person under
the age of 18 engaged in sexually explicit conduct. See 18 U.S.C. §§
2256(1) and (8). This means that any image of a child engaged in sexually
explicit conduct is illegal contraband. Notably, the legal definition of
sexually explicit conduct does not require that an image depict a child
engaging in sexual activity. See 18 U.S.C. § 2256(2). A picture of a naked
child may constitute illegal child pornography if it is sufficiently
sexually suggestive. In addition, for purposes of the child pornography statutes,
federal law considers a person under the age of 18 to be a child. See 18
U.S.C. § 2256(1). It is irrelevant that the age of consent for sexual
activity in a given state might be lower than 18. A visual depiction for
purposes of the federal child pornography laws includes a photograph or
videotape, including undeveloped film or videotape, as well as data stored
electronically which can be converted into a visual image. For example,
images of children engaged in sexually explicit conduct stored on a computer
disk are considered visual depictions.
Federal
prosecutors enforce the laws that make it a crime to possess, receive,
distribute or produce child pornography in a way that affects interstate or
foreign commerce. See 18 U.S.C. §§ 2251, 2252, 2252A. Thus, federal
jurisdiction is implicated when the visual image is transported across
state lines, or when the visual image was produced using materials that
were transported across state lines. It is important to note that this set
of requirements covers transporting pornographic materials depicting
children electronically by computer. For example, it is illegal under
federal law to send an email containing child pornography to a person in
another state. It is also illegal to send an email containing child
pornography to a person in the same state if the computer server for the
email is located in a different state. Given the complex configuration of
the Internet, this will almost always be the case. Not surprisingly, it is
illegal to download child pornography from an Internet web site. Even in
cases where the image itself has not traveled in interstate or foreign
commerce, federal law may still be violated if the materials used to create
the image - - such as the CD Rom on which the child pornography was stored,
or the film with which child pornography was created - - traveled in
interstate or foreign commerce. Id.
While federal courts may interpret these situations differently depending
upon the jurisdiction, the federal government has jurisdiction to investigate
and prosecute offenders in such situations. Mailing child pornography via
the United States Postal Service is automatically a federal offense, even
if material is mailed to someone in the same state. Moreover, people
possessing, receiving, distributing or producing child pornography can be
prosecuted under state laws in addition to, or instead of, federal law.
People who sell or purchase children intending or knowing that the child
will be involved with any sexual activity are also prosecuted under federal
law. See 18 U.S.C. § 2251A. Federal prosecutors have legal authority to
prosecute people who buy and sell children for pornographic or sexual
activity when the child being sold or transferred must be transported in
interstate or foreign commerce, or the offer to sell or purchase the child
is communicated or transported in interstate or foreign commerce by any
means, including computer or United States mails. Where this
interstate conduct does not occur, state and local law enforcement
authorities can prosecute this reprehensible conduct.
Congress recently significantly increased the maximum prison sentences for
child pornography crimes and in some instances created new mandatory
minimum sentences. These prison terms can be substantial, and where there
have been prior convictions for child sexual exploitation, can result in a
life sentence.
U.S. Department of Justice,
Criminal Division ° Child Exploitation and Obscenity Section (CEOS)
1400 New York Avenue,
6th Floor ° Washington,
D.C. 20530
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