Frank Svetlik Child Pornography Defense Attorney
 

Charged with Child Pornography?
Houston criminal attorney, Frank Svetlik, has focused his practice on the agressive defense of child porn and related criminal charges brought in Texas and Federal Courts.

Sexual Exploitation of Children - Federal

by Frank Svetlik

The United States Federal Criminal Code, Chapter 110, 18 U.S.C. § 2251, provides the elements of the crimes contained within the section titled "Sexual Exploitation of Children" as well as the potential penalties for conviction under this section.

On the federal level, sexual exploitation of children has penalties which are among the most severe in the panoply of imprisonment sentences for crimes defined by the United States Code. The minimum sentences start at 20 years and escalate to 25 years and then 35 years if there are aggravating factors such as prior convictions. If as a part of the activities involving the proscribed conduct, someone dies than conviction under this statute can be a capital offense, and the defendant can be sentenced to death in federal court.

This law prohibits making child pornography. This statute criminalizes inducing children to perform in order to appear in child pornography. Unlike many criminal statutes, the conduct prohibited by this law and need not occur within the United States of America but can take place anywhere at all if there is an intention or realistically any possibility that the offending material will be mailed or transported in the United States of America.

An accusation of conspiring to violate the provisions of this statute regarding sexual exploitation of children carries with it the exposure to the harsh minimum sentences described above. You, as an alleged conspirator, need not be aware of the magnitude of the conspiracy or the nature and extent of the actions of the persons with whom you may be accused of conspiring, but will be held responsible for all of their actions as if you committed them, and you can go to jail for as long as they do under the provisions of the federal sentencing regime.

The federal sentencing guidelines pile on additional time to be served by persons convicted of sexual exploitation of children. A criminal defense lawyer familiar with aggressive defense against child pornography accusations must make every effort to see that the offense level is not increased for the depiction of children under 16 years or 12 years, the use of physical force in the images, the use of a computer, or the involvement of a parent or guardian of the child.

The Law: 

§2251. Sexual exploitation of children

   (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

   (b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

   (c)(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).

   (2) The circumstance referred to in paragraph (1) is that—

(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or

(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail. 

   (d)(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering—

(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or

(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct; shall be punished as provided under subsection (e).

   (2) The circumstance referred to in paragraph (1) is that—

(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or

(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed. 

   (e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.

 

Law Office of Attorney Frank Svetlik

713-724-8538

 

 

§2256. Definitions for chapter

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) 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.

Law Office of Attorney Frank Svetlik

713-724-8538