Possession of Child Pornography in Florida
Under Florida Statute 827.071(5)(a), the crime of Possession of Child Pornography is defined as knowingly possessing, controlling, or viewing child pornography.
Child pornography includes photographs, motion pictures, exhibitions, shows, representations, images, data files, computer depictions, or other presentations that includes any sexual conduct by a child.
Sexual Conduct
Sexual conduct includes both actual or simulated sexual activity, actual lewd exhibition of the genitals, and actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or female breasts with the intent to arouse or gratify the sexual desire of either party.
Unit of Prosecution
Child pornography investigations usually result in the discovery of multiple images of child pornography. And while the term child pornography connotes the possession of multiple images, Florida law defines the possession of each image as a separate and distinct crime.
Florida law treats each image of child pornography as a separate crime. -- Florida Statute 827.071(5)(a)
Consequently, each image of child pornography can be prosecuted as a separate count of Possession of Child Pornography. And most people arrested for Possession of Child Pornography are formally charged with 10s or 100s of counts of Possession of Child Pornography.
Penalties for Possession of Child Pornography
In Florida, the crime of Possession of Child Pornography is a Third Degree Felony and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.
Possession of Child Pornography is assigned a Level 5 offense severity ranking under Florida’s Criminal Punishment Code. A judge may sentence a person convicted of a single count of Possession of Child Pornography to sex offender probation, but may also sentence the person up to the statutory maximum of five years in prison.
Possession of Four or More Images of Child Pornography
A person charged with four or more counts of Possession of Child Pornography would score a mandatory prison sentence under Florida’s Criminal Punishment Code and, absent grounds for a downward departure sentence, a judge is required to sentence a person convicted of four or more counts of Possession of Child Pornography to prison, but may also sentence the person up to the statutory maximum of 5 years in prison.
As a result, a person charged with four counts of Possession of Child Pornography would be facing a mandatory prison sentence of 12 months in prison and would be facing an additional 4 months in prison for each additional count of Possession of Child Pornography the person is convicted of (i.e. A person charged with five counts of Possession of Child Pornography would be facing 15 months in prison).
Aggravated Possession of Child Pornography
Pursuant to Florida Statute 775.0847(2), the crime of Aggravated Possession of Child Pornography is committed if a person possesses 10 or more images of any form of child pornography and at least one of the images contains one of the following:
- A child who is younger than the age of 5;
- Sadomasochistic abuse involving a child;
- Sexual battery involving a child;
- Sexual bestiality involving a child; or
- Any movie involving a child, regardless of length and regardless of whether the movie contains sound.
Aggravated Possession of Child Pornography is a Second Degree Felony and punishable by up to fifteen (15) years in prison, fifteen (15) years of probation, and a $10,000 fine.
Aggravated Possession of Child Pornography is assigned a Level 6 offense severity ranking under Florida’s Criminal Punishment Code, which standing alone technically allows a judge to sentence a person convicted of Aggravated Possession of Child Pornography to sex offender probation.
However, Aggravated Possession of Child Pornography is a derivative crime, meaning that it is based on ten images of Child Pornography, which are often charged as separate counts. As a result, a person can be convicted of both Possession of Child Pornography and Aggravated Child Pornography [1], which would call for a minimum sentence of approximately 41 months in prison.
Sex Offender Designation
A person convicted of Possession of Child Pornography would not only be placed on sex offender probation, but would also be designated a sexual offender. [2]
A designated sex offender is required to comply with sexual offender registration laws in Florida and throughout the United States for the remainder of their lives.
Defenses to Possession of Child Pornography
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, a specific defense to the crime of Possession of Child Pornography is:
Adult Depiction
It is a defense to the crime of Possession of Child Pornography that the images in question are entirely of persons over the age of eighteen (18) years of age (i.e. adults), even if one or more of the persons depicted appear to be under the age of 18. [3]
Child Erotica
Child pornography can be distinguished from child erotica which is defined as material that depicts “young children as sexual objects or in a sexually suggestive way,” but is not “sufficiently lascivious to meet the legal definition of sexually explicit conduct.” [4]
It is a defense to the crime of Possession of Child Pornography if the images of the children depict erotica, as opposed to pornography.
Transitory Possession
The crime of Possession of Child Pornography requires a person to either knowingly possess or intentionally view child pornography.
In some cases, people are unwittingly sent an image of child pornography, but immediately delete the image once they realize the illicit nature of the image. However, a thumbnail image may still reside on the person’s electronic device or the image may still be in a memory cache even though the primary image was deleted.
In this scenario, the image was not intentionally viewed and any remaining thumbnail image or memory cache image was not knowingly possessed. Consequently, the transitory possession of an image under these circumstances would be a defense to the crime of Possession of Child Pornography.
Contact Criminal Defense Lawyer Richard Hornsby
If you have been arrested or charged with the crime of Possession of Child Pornography in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.