Below, The Margarian Law Firm will introduce to you the main elements of the California Internet Pornography Laws. Moreover, in the resources of our site you can find detailed information about different kind of Sex Crimes in California.
1. Definition of the Crime of Internet Pornography under California Law
a) Federal Obscenity Laws
2. Criminal Elements of the Crime of Internet Pornography in California
3. Punishment for Violating Internet Pornography Laws in California
4. Defenses to the Accusations of Unlawful Internet Pornography in California
5. Related Articles
1. California “Child Pornography” Laws: Penal Code 311 PC
The production, dissemination, or possession of child pornography is illegal under both California State Law and U.S. Federal Law. Under California Penal Code Section 311 obscene material is defined as that which appeals to the prurient interest of an individual and depicts or describes offensive sexual conduct, and also lacks serious artistic, literary, political or scientific value.
Child pornography refers to any material which depicts undressed or even dressed children, in erotic poses or actual sexual activity. Child pornography has increased as a result of easier access and availability in the internet.
You can face criminal investigation charges of child pornography even when you unintentionally download child pornography or if an automated porno program or virus is placed on your computer without your knowledge.
California Law Penal Code Section 311 prohibits individuals from possessing or distributing materials which depicts a minor engaging in or simulating sexual conduct. According to Penal Code Section 311, sexual conduct includes all sort of or kind of sexual intimacy (i.e. penetration of the vagina or rectum with any object, masturbation, sadomasochistic abuse, exhibitionism, defecation or urination) between people of the same or opposite sex or between humans and animals.
Child pornography offenses in California can either be misdemeanors or felonies.
Child pornography laws in California include, but are not limited to:
· Possession of child pornography (PC 311.11),
· Developing/producing child pornography (PC 311.3).
According to PC 311, child pornography prosecutors can secure a conviction by providing evidence that the defendant was aware that they participated in child porn (whether creation, possession or distribution) and the victim was a minor.
Here are several subdivisions of California PC 311:
Marketing and selling child porn (California Penal Code Section 311.10);
Circulation of child porn (California Penal Codes Section 311.1(a) /(b));
Creating and making copies of child porn (California Penal Code 311.3);
Hiring children to take part in child porn (California Penal Code 311.4);
Owning child porn (California Penal Code Section 311.11).
a) What are U.S. FEDERAL OBSCENITY LAWS?
According to Section 18 US Code 2252 knowingly transporting or shipping, receiving or distributing (by mail for example), possessing or accessing material that depicts a minor engaging in sexually explicit conduct is a crime. Selling, transporting, producing or distributing the material can result in a minimum prison sentence of five years or up to twenty years. .
Section 18 USC 2257 also states that it is absolutely crucial for the porn business to have/and keep employee age records on file for proof that they were the over the age of 18.
Some sexually explicit material involving adults is protected by the First Amendment of the United States Constitution. However, a number of United States Supreme Court cases state that many aspects of pornography are not protected by the First Amendment. Since only a few federal pornography laws have been mentioned above and this field is much more complicated, it is important to consult an experienced attorney in this field before entering the porn industry or downloading any questionable material from the internet.
2. What Must Be Proven in Order to Convict of California Internet Pornography
To prove that a defendant is guilty under PC 311.11, the prosecutor must show:
· the defendant possessed materials involving the sexual activity of a minor,
· the defendant who possessed this material knew that it depicted persons under the age of 18 engaging in, or simulating sexual activity.
To prove that the defendant is guilty of sexual exploitation of a minor (PC 311.1(a)), the prosecutor must first show any one of the following:
· defendant brought the obscene material in California;
· defendant possessed (prepared, published, produced or developed) the obscene material;
· defendant offered to distribute obscene material to someone else;
· defendant distributed (showed, exchanged) the obscene material with someone else;
· defendant acted, knowing the character of the matter and showed it a person under the age of 18 who was personally participating or simulating sexual conduct;
· defendant acted with an intent to sell (distribute, show or exchange) the material with someone else for money or commercial benefit.
3. Penalties for Violating Internet Pornography Laws in California
As the child pornography charge can be either felony or misdemeanor, so the punishment for possession can range from probation to incarceration in jail or prison ( registering as a sex offender), a fine not exceeding $2,500, or some combination of probation, incarceration, and/or fine.
Punishment for child pornography Penal Code 311
Under, Penal Code 311.3 violators can be fined up to $2,000, or imprisoned in the county jail for up to one year. A defendant with a prior conviction of Sexual Exploitation of a minor will likely be end up in state prison and may have to register as a sex offender.
a) Closely Associated Crimes to California Child Pornography (PC 311)
Closely associated crimes to child pornography (PC 311) include:
· distribution of harmful material to a minor PC 313.1(a)),
· contracting to pay a minor for an unlawful sex act (PC 310.5),
· attempting to contract with a minor to commit a lewd act (PC 288.2).
In the case of a misdemeanor, the defendant can be charged with up to 1 year in the County Jail or a maximum $2,500 fine.
In the case of felony, the defendant can face from 16 months to 8 years in the California State Prison or a maximum $100,000 fine.
4. Defenses to the Accusations of Unlawful Internet Pornography in California
It is possible that an innocent person can be accused for violating internet pornography laws. In the scenario when an innocent person is accused of violating internet pornography laws, they should contact and experienced attorney, who will use the best legal defense to get the best possible outcomes for your case.
Below, you can find some of them:
Material Serves a Legitimate Purpose
Proving that the materials with which the defendant was engaging were not for the purpose of child pornography (PC 311), and instead contained scientific or educational value, he or she can be found not guilty of distributing child pornography.
Entrapment is a defense to child pornography charges (PC 311). The defendant must establish that he or she was persuaded by a police officer to engage in child porn, otherwise he or she would never have engaged in the activity. But it must be considered that an officer cannot use pure fraud to lure a person into committing a crime he/she was not otherwise willing to commit.
Mistake of Age
Under PC 311.11 , the defendant must be sure the individuals in the material are under the age of 18. If the material is marketed as adult porn with minors engaged in sexual activity, the defendant may have a defense that he or she did not knowingly possess child pornography. This would be considered as “knowingly possess” child pornography.
5. Can I Expunge Internet Pornography Conviction?
Yes, it is possible. For example, if you are convicted of prostitution and have the conviction expunged, a second conviction will not spare you the mandatory penalty of 45 days in jail.
California Penal Code Section 4852.01 states that a person can be granted a Certificate of Rehabilitation and a pardon (ex. oral copulation of a child).
6. Related Articles
There are a variety of sex crimes that fall under the umbrella of California law, including:
If you or a loved one have been accused of such crimes but believe you are innocent, do not hesitate to contact us. The Margarian Law Firm aggressively protects the rights of criminal defendants in California. Our experienced attorneys will evaluate your case and prepare you for your defense trial as fast as possible.
We will do our best to get the best possible outcome for You!
You may file your request online, by telephone or mail. 818-553-1000