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Criminal Defense Information for Child Pornography (Cal. Penal Code s. 311.1)

  1. What is Child Pornography?
  2. What are the necessary elements to be found guilty of Child Pornography?
  3. What is the sentence / punishment for Child Pornography?
  4. What are possible defenses to charges of Child Pornography?
  1. What is Child Pornography?

    Child Pornography is any image that depicts a person under the age of 18 years engaging in or personally simulating sexual conduct. Cal. Pen. Code s. 311.1 (a) Opens in New Window.

    The sexual conduct is specifically enumerated in Cal. Pen. Code s. 311.4 (d) Opens in New Window and includes actual performance of these acts or simulating the acts such that it appears to be sexual conduct:

    • Anal intercourse;
    • Anal oral copulation;
    • Any lewd and lascivious act defined in Cal. Pen. Code s. 288 Opens in New Window;
    • Bestiality;
    • Excretory functions performed in a lewd and lascivious manner;
    • Exhibition of the genitals, pubic region, or anus;
    • Masturbation;
    • Oral copulation / oral sex;
    • Penetration of the vagina or anus with a foreign object (including fingers);
    • Sexual intercourse;
    • Sexual masochism (BDSM);
    • Sexual sadism (BDSM); or
    • Any of the above regardless of the gender of the participants or whether one participant is an animal.

    A person is guilty of violating this section if he knowingly sends or brings Child Pornography into California for sale or distribution or if the person possesses, prepares, publishes, produces, duplicates, prints, etc., Child Pornography in California with the intent to exchange the pornography with others, to exhibit, or to distribute the images knowing that the model is under 18 years old. Cal. Pen. Code s. 311.1 (a) Opens in New Window.

  2. What are the necessary elements to be found guilty of Child Pornography?

    To prove the defendant violated Child Pornography statutes, the state must show that the defendant:

    1. Had an image containing a person under the age of 18;
    2. In California;
    3. Knew the model was under 18 years old;
    4. The model in the image was engaged in or simulating sexual conduct specifically enumerated by the statute;
    5. The model was not legally married; and
    6. The model was not legally emancipated.
  3. What is the sentence / punishment for Child Pornography?

    Violations of Cal. Pen. Code s. 311.1 (a) Opens in New Window for having obscene matter that depicts minors in sexual conduct are wobblers. Punishment is either up to one year in jail and/or $1,000 fine or 16 months, two years, or three years in prison and/or $10,000 in fines. Generally, first offenses of possessing Child Pornography for personal use are handled as misdemeanors. Cal. Pen. Code s. 311.2 (a) Opens in New Window.

    A subsequent violation of this section will result in a felony under Cal. Pen. Code s. 311.2 (c) Opens in New Window.

    If the defendant is found guilty of possessing the Child Pornography with the intent to sell it (i.e., use it for commercial consideration), it is a felony and the sentence is two, three, or six years in prison and/or a $100,000 fine. Cal. Pen. Code s. 311.2 (b) Opens in New Window.

    If the defendant intends to or actually does share the Child Pornography with a person under 18 years old, they are guilty of a felony. Cal. Pen. Code s. 311.2 (d) Opens in New Window.

    Also, if the defendant possessed any matter (obscene or not) that depicts a minor in sexual conduct, it is a misdemeanor if it is a first offense (one year in jail and/or $2,000 fine) and a felony for subsequent offenses (16 months, two years, or three years in prison and/or fines). Cal. Pen. Code s. 311.2 (c) Opens in New Window.

  4. What are possible defenses to charges of Child Pornography?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    If the prosecutor can prove all the elements of Child Pornography, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Child Pornography, some of these justifications include:

    • The "child" was legally emancipated when the image was taken (Cal. Pen. Code s. 311.1 (c) Opens in New Window);
    • The "child" was legally married when the image was taken (Cal. Pen. Code s. 311.1 (c) Opens in New Window);
    • Accident;
    • Alibi / Mistaken Identity;
    • Coerced Confession;
    • Double Jeopardy;
    • Duress / Threats;
    • Entrapment;
    • Insanity;
    • Mistake of Fact (e.g., the "child" was really over 18 when the image was taken);
    • Statute of Limitations;
    • Unconsciousness; and
    • Voluntary / Involuntary Intoxication.
See also, Child Endangerment, Child Neglect, Sexual Exploitation of a Child, Statutory Rape.