Child Pornography Is A Crime. Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor. Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.
Child Pornography Victim Assistance (CPVA)
The CPVA program was established to ensure that victims of child pornography and their guardians can exercise their rights each time their images are included in a federal criminal case and to ensure that victims have access to victim assistance services no matter how much time has passed since the original abuse took place. The Office for Victim Assistance serves as the central repository for contact information, notification preference, and victim impact statement submission preference for identified victims in child pornography cases. CPVA also responds to requests from federal investigative agencies and prosecutors who are working cases that involve images of these children.
How to Change Your Contact Information or Notification Preference
OVC is a federal office that provides funding to support victim assistance and compensation programs. OVC’s website provides victims with information, resources, and a directory of crime victim services. Contact: Call 1-800-851-3420 or visit www.ovc.gov.
Child Help USA Hotline
This 24-hour hotline is dedicated to the prevention of child abuse. It offers crisis intervention, information, literature, and referrals to local emergency, social service, and support resources. Contact: Call 1-800-4-A-CHILD (422-2253) or visit www.childhelpusa.org.
National Center for Victims of Crime (NCVC)
NCVC works with local, state, and federal partners to provide direct support and resources to victims of crime and advocates for laws and public policies that secure rights, resources, and protections for crime victims. Contact: Call 1-800-394-2255 or visit www.ncvc.org.
National Crime Victim Bar Association
The National Crime Victim Bar Association provides information regarding filing civil lawsuits against a perpetrator or other responsible party and help locating attorneys specializing in victim-related litigation.Contact: Call (202) 467-8753 or visit www.victimbar.org.
Picture this: A photo of a boy and girl — unmistakably naked, posed and giggling — holding two very large sausages (Italian?). The boy is maybe 8, the girl maybe 6. They are not touching each another, nor does the camera seem especially interested in their genitals. What catches the eye are those sausages, but not that they are involved in anything you or I would call, right off, sexual: They are not being licked, stroked or inserted. They are more atmospheric, I guess you could say.
Is this child pornography? Well, if you are a photo lab manager in Burbank, Calif., you follow the in-store policy and ask the store manager. The store manager, noticing the nudity and the meat, follows what he takes to be the law and calls the Burbank police. The police send two undercover cops out with instructions to nab the photographer. The cops then order the photo lab manager to phone the customer, tell him his prints are ready and instruct him to come pick them up right away.
The customer agrees to drop everything and run over, but then doesn’t show, forcing the undercover police to cool their heels for six hours before giving up. Later the cops do nab the suspect, who says the photos were taken by the kids’ uncle who thought the children’s play with the sausages was “funny.” The Burbank police decide to let it go with a warning laced with disgust: There’s nothing “funny” about photos like these, photos that are indecent, degenerate and, next time, criminal.
As a script written for the Keystone Kops, this much ado about sausages scenario would be funny. But it is a true story. It is a sorry saga about our confused desires when it comes to kids and sex, and the way these collective desires are reflected in our failure to clearly define and execute the laws governing child pornography. This black comedy set in Burbank proves a scary point: At this time there is no way to differentiate — legally — between a family snapshot of a naked child and child pornography.
Not that photo labs don’t try. They do, and every now and then they light upon (or concoct) what they take to be a case of child pornography. There are about 10 cases in the last dozen years that have emerged in the press. Some are worthy of mention here, mostly because they weren’t worthy of attention when they occurred:
American photo labs are arresting parents as child pornographers for taking pictures of their kids in the bath.Do Not Take Photos of Kids At All Is Best Thing !
WASHINGTON — The Supreme Court on Wednesday set aside a $3.4 million award to a victim of child pornography who had sought restitution from a man convicted of viewing images of her. That figure was too much, Justice Anthony M. Kennedy wrote for a five-justice majority, returning the case to the lower courts to apply a new and vague legal standard to find a lower amount that is neither nominal nor too severe.
The victim in the case said the majority’s approach was confusing and meant that she might never be compensated for her losses.
The two dissents to the majority opinion would have taken more categorical approaches. Chief Justice John G. Roberts Jr., joined by Justices Antonin Scalia and Clarence Thomas, said that restitution was a worthy goal, but that the federal law at issue did not allow awards when many people had viewed the images.
Justice Sonia Sotomayor took the opposite view, saying that each viewer could be held liable for the full amount of the victims’ losses.
The case arose from the prosecution of Doyle R. Paroline, who was convicted in 2009 of possessing 280 images of child pornography. Two of them were of a woman known in court papers as Amy.
Images of Amy being sexually assaulted by her uncle as a child have been widely circulated and have figured in thousands of criminal cases. Amy has often sought restitution for her losses under a 1994 federal law. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”
Amy’s lawyers say her losses — for lost income, therapy and legal fees — amount to $3.4 million. She has been granted restitution in about 180 cases and has recovered about 40 percent of what she seeks.
The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million.
Mr. Paroline said he owed Amy nothing, arguing that her problems did not stem from learning that he had looked at images of her. Amy’s uncle, who was sentenced to 12 years in prison for his crimes, bore the brunt of the blame, Mr. Paroline said, but was ordered to pay Amy just $6,325.
Mr. Paroline was sentenced to two years in prison, but the trial judge said Amy was not entitled to restitution, saying the link between Amy’s losses and what Mr. Paroline did was too remote.
The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it was too much, the court said, relying on the legal doctrine of “joint and several” liability.
The Supreme Court adopted neither of the lower courts’ approaches. Acknowledging that he was employing “a kind of legal fiction,” Justice Kennedy said the only sensible method of apportionment was for courts to require “reasonable and circumscribed” restitution “in an amount that comports with the defendant’s relative role.”
“This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment,” Justice Kennedy wrote. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr. and Elena Kagan joined the majority opinion.
Chief Justice Roberts said the majority’s approach was arbitrary and impossible to square with the words of the 1994 law. “The statute as written allows no recovery,” he said. “We ought to say so, and give Congress a chance to fix it.”
Justice Sotomayor, in turn, was critical of the chief justice’s dissent, saying it “would result in no restitution in cases like this for the perverse reason that a child has been victimized by too many.”
Of the majority’s approach, she said that “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.” She said she would award the full amount of Amy’s losses but let offenders pay them off over time until she was made whole.
In a statement issued through her lawyers, Amy said the Supreme Court’s decision, in Paroline v. United States, No. 12-8561, had left her “surprised and confused.”
“I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives,” she said. “It’s crazy that people keep committing this crime year after year, and now victims like me have to keep reliving it year after year.”Continue reading the main story Write A Comment
In another case, concerning the death penalty, the court split 6 to 3 over whether its precedents had established that capital defendants are entitled to a jury instruction that their failure to testify at sentencing hearings should not be held against them.
The case, White v. Woodall, No. 12-794, involved Robert K. Woodall, a Kentucky man who pleaded guilty to the 1997 rape, mutilation and drowning of Sarah Hansen, a 16-year-old high school student. He did not testify at his sentencing hearing in state court, and the judge declined to give the requested instruction. Mr. Woodall was sentenced to death.
Justice Scalia, writing for the majority, said Mr. Woodall’s challenge to his conviction in federal court must fail because the Supreme Court had not squarely ruled on whether defendants have a right to the instruction. In dissent, Justice Breyer said the right was clearly established.
Toronto police revealed details this morning of an international child sex abuse and pornography investigation that stretched across six continents and has led to hundreds of arrests, including 50 in Ontario and 58 in the rest of Canada.
At a news conference Thursday, police said 348 people have been arrested and 386 children rescued from situations around the world where they were at risk. Twenty-four children in Canada were among those rescued, they said.
Those charged include Brian Way, 41, who operated Azovfilms.com in Toronto, and is alleged to have solicited and sold child pornography around the world. The products included videos and pictures, police said. The company went out of business in 2011.
Altogether, about 45 terabytes of child pornography on computers were seized, portraying hundreds of thousands of sexual acts involving children, Inspector Joanna Beaven-Desjardins, commander of the Toronto police sex crimes unit, said.
School teachers, doctors and actors were among those arrested, Beaven-Desjardins said. The investigation was known internally as Project Spade.
Way, the Toronto man at the heart of the investigation, was allegedly running a company since 2005 that distributed child pornography videos around the world.
Police allege he instructed people around the world to create the videos of children ranging from five to 12 years of age, and then distributed the videos to international customers.
Way faces about two dozen charges of making, distributing, exporting and selling explicit images of boys ranging in age from toddlers to teens, the Toronto Star reported.
The United States Postal Inspection Service was closely involved in the investigation, as were authorities in Sweden, Spain, Australia, South Africa, and Hong Kong, among others. Several were represented at the Toronto news conference.
Among those present were Gerald O’Farrell, acting deputy chief inspector of the United States Postal Inspection Service, Insp. Brian Bone of the same agency, and Signy Arnason, associate executive director of Cybertip — the Canada Centre for Child Protection.
WASHINGTON -- The Supreme Court faced three options Wednesday for extracting restitution from perpetrators of child pornography: Sock them for their victim's full compensation, none of it, or something in between.
The justices didn't like any of those options.
They all wanted "Amy" to be compensated for the estimated $3.4 million cost of her travails, which have made her childhood rape at the hands of her uncle one of the Internet's most popular series of images for traffickers in child pornography.
They did not, however, think that Doyle Randall Paroline, who possessed two images and was sentenced in 2009 to two years in prison, should be held liable for the full amount. And while the federal government called for Paroline and others to pay fair shares for Amy's psychotherapy and other costs, the justices had trouble with the math.
"The woman has undergone serious psychological harm because of her knowledge that there are thousands of people out there viewing her rape," Justice Antonin Scalia said, later adding, "Each person increases the amount of her psychological harm."
Amy, whose real name is not used in court papers, was raped and filmed at ages 8 and 9. It wasn't until she was 17 that she learned the sex acts had gone viral on the Internet. As a result, her lawyers say, she could not finish college, has had trouble holding a job and will require weekly psychotherapy for the rest of her life
Since her images were discovered, federal authorities have identified more then 3,200 cases in which they were downloaded. They have won court orders for restitution totaling more than $1.7 million in 182 cases.
Deputy Solicitor General Michael Dreeben suggested that federal district court judges should decide how much each offender should pay, perhaps based on simple division. So far, he said, each one would be liable for about $18,000.
How, the justices wondered, should the first offender in such a system be treated if the ultimate number of offenders isn't known?
"It doesn't work very well for the first person," Dreeben acknowledged.
The case stems from Congress' passage of the Sexual Exploitation and Other Abuse of Children Act, which established penalties and restitution for sexual assault, domestic violence and child pornography. The law called for full restitution but did not specify who should pay what.
Amy's attorney, Paul Cassell, argued that every offender should be held liable for the entire amount and made to pay what they can until she has been fully compensated. Otherwise, he said, it could take many years to reach the $3.4 million goal for Amy's lifetime costs.
While the justices agreed she deserves the money, they didn't agree that Paroline should be asked to pay it all. "Some limiting principle has to come into play," Justice Stephen Breyer said.
How to estimate Paroline's culpability in dollars and cents, however, proved impossible -- and for good reason. Federal district court judges have come up with widely varying figures -- some of which, Justice Elena Kagan said, appear to have been "plucked out of the air."
"In criminal sentencing, imprecision and estimation is the order of the day," Dreeben said. "A reasonable estimation is better than all or none."
Citizen's Guide to U.S. Federal Law on Child Pornography
18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography) 18 U.S.C. § 2251A- Selling and Buying of Children 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography) 18 U.S.C. § 2252A- certain activities relating to material constituting or containing child pornography 18 U.S.C. § 2256- Definitions 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States
Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law. Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law. Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. Additionally, the age of consent for sexual activity in a given state is irrelevant; any depiction of a minor under 18 years of age engaging in sexually explicit conduct is illegal. Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (See 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A). Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law. Federal jurisdiction is implicated if the child pornography offense occurred in interstate or foreign commerce. This includes, for example, using the U.S. Mails or common carriers to transport child pornography across state or international borders. Additionally, federal jurisdiction almost always applies when the Internet is used to commit a child pornography violation. Even if the child pornography image itself did not traveled across state or international borders, federal law may be implicated if the materials, such as the computer used to download the image or the CD Rom used to store the image, originated or previously traveled in interstate or foreign commerce. In addition, Section 2251A of Title 18, United States Code, specifically prohibits any parent, legal guardian or other person in custody or control of a minor under the age of 18, to buy, sell, or transfer custody of that minor for purposes of producing child pornography. Lastly, Section 2260 of Title 18, United States Code, prohibits any persons outside of the United States to knowingly produce, receive, transport, ship, or distribute child pornography with intent to import or transmit the visual depiction into the United States. Any violation of federal child pornography law is a serious crime, and convicted offenders face severe statutory penalties. For example, a first time offender convicted of producing child pornography under 18 U.S.C. § 2251, face fines and a statutory minimum of 15 years to 30 years maximum in prison. A first time offender convicted of transporting child pornography in interstate or foreign commerce under 18 U.S.C. § 2252, faces fines and a statutory minimum of 5 years to 20 years maximum in prison. Convicted offenders may face harsher penalties if the offender has prior convictions or if the child pornography offense occurred in aggravated situations defined as (i) the images are violent, sadistic, or masochistic in nature, (ii) the minor was sexually abused, or (iii) the offender has prior convictions for child sexual exploitation. In these circumstances, a convicted offender may face up to life imprisonment. It is important to note that an offender can be prosecuted under state child pornography laws in addition to, or instead of, federal law.
What is Child Pornography?
Child Pornography is a criminal offense and is defined as any visual depiction involving the use of a minor, or one appearing to be a minor, engaging in sexually explicit conduct. Visual depictions include photographs, film, video, pictures or computer-generated images or pictures, whether made or produced by electronic, mechanical, or other means. Child pornography has become particularly problematic with the rise of the Internet and its ability to both transmit data far and wide and provide a level of anonymity to its users and the victims depicted in images of child pornography.
Types of Depictions
Any depiction of a child engaged in sexually explicit conduct may be considered child pornography. This can include photographs, digital images, computer-generated images, drawings, videos, or animations, among others. This also applies if the person in the depiction is actually an adult but appears to be a minor. Moreover, altering an image or video so that it appears to depict a minor may also be child pornography (for example, editing the face of a minor onto the nude body of an adult in an image or video).
Defined Terms for Child Pornography
A "minor" is any person under the age of eighteen years.
"Sexually explicit conduct" means actual, graphic or simulated sexual intercourse, including anal and oral; bestiality; masturbation; sadistic or masochistic abuse; or lewd exhibition of the genitals or pubic area of the minor.
Obviously, producing child pornography is illegal. However, it is also illegal to knowingly possess, distribute, receive, or possess with intent to distribute, any form of child pornography. Each act may receive a different criminal penalty. Inadvertent access is usually not illegal, such as accidentally clicking on a link that directs one's web browser to such a depiction. However, repeated visits may demonstrate a pattern of behavior sufficient for a conviction.
There is an exception to typical definitions of child pornography. If it can be proven that the depiction has serious literary, artistic, political, or scientific value, it may be exempted from child pornography laws. The definition of a pornographic image can be subjective and many courts refer to the case of U.S. v. Dost to determine whether an image meets the criteria for pornography. That case created the "Dost Test" in order to better determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area." The Dost Test has six criteria, not all of which must be present, nor are other criteria necessarily excluded from the test. Those criteria are:
1. Whether the focal point of the visual depiction is on the child's genitalia or pubic area.
2. Whether the setting of the visual depiction is sexually suggestive, (i.e., in a place or pose generally associated with sexual activity).
3. Whether the child is depicted in an unnatural pose or inappropriate attire given the age of the child.
4. Whether the child is fully or partially clothed/nude.
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Sources of Law
It is both a federal and a state crime to knowingly possess, manufacture, distribute, or "access with intent to view" child pornography. The federal law prohibiting child pornography is 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children. In addition, the Child Online Protection Act and the Children’s Internet Protection Act also outlaw child pornography and cover media such as websites and other online forms of child pornography. Additionally, every state has its own laws regarding both child pornography and statutory rape (i.e., sexual activities with a minor).
Child pornographers can be prosecuted by the FBI, the Department of Justice, the U.S. Postal Inspection Service, U.S. Customs, the U.S. Attorney General, state attorneys general, state and local law enforcement, and local prosecutors. Largely, who has jurisdiction and who will be responsible for prosecuting depends on the way in which the pornography was accessed or distributed. If across state lines, such as by the internet or through the mail, federal authorities may be involved, though local authorities can also prosecute for these crimes on their own. Child pornography convictions can result in up to 15 years in federal prison as well as registration by the convicted as a sex offender.
To consult State Legislation regarding child pornography laws and regulations please see the Criminal Code by State page.
You can also find additional resources related to child pornography below on this page, or you can consult with an attorney in your area by visiting our Westlaw Books pages.
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