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Federal Versus State Child Pornography Charges: What's the Difference?
Learn more about the important distinctions for those potentially facing charges.
February 01, 2012 /Coaching - Mentoring PR News/ -- Child pornography is illegal under federal law as well as the laws of all 50 states. Any image of a child engaged in sexually explicate conduct is illegal contraband, material that it is against the law to possess, view or distribute.
But what does it mean for those facing child pornography accusations that both federal and state laws may apply to their situation? Seattle child pornography lawyers are the best resources for a full explanation of your rights and options as a defendant, but anyone can benefit from a general understanding of how Washington and federal child pornography laws intersect and differ.
Washington and Federal Child Porn Overview
For many child pornography violations, both federal and state laws can apply. Technically, a defendant can be tried by federal and state authorities for a single instance of wrongdoing. Functionally, this rarely, if ever, happens; child pornography charges will typically be levied in the Washington state courts or the federal system, but not both.
Several factors may go into determining whether a child pornography case will end up in state or federal court. One is what type of law enforcement agency -- federal, state or local -- is conducting a sex crime investigation regarding child porn allegations. Another is whether the alleged wrongful conduct falls within the purview of federal laws.
Federal and Washington state statutes define child pornography in a similar manner. Under federal and state laws, a child does not have to be visually depicted engaging in sexual activity or intercourse in order for an image to be considered child pornography. Even a simple picture of a solitary naked child engaging in no action whatsoever may constitute illegal child pornography under both federal and state laws. Washington statute even expands "sexually explicit conduct," a real or simulated depiction of which can be child pornography, to include certain images of clothed children -- for instance, photographs that visually represent sadomasochistic abuse or the touching of a person's clothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer. Although the age of consent in Washington is 16, child pornography under state and federal law is a visual depiction of anyone under the age of 18 engaged in sexually explicit conduct. This counterintuitive legal nuance means that a Washington resident may be legally permitted to engage in sexual intercourse with a consenting 16 or 17 year old, but could face years in prison for possessing nude photographs of that very same individual.
Interstate Commerce Requirement for Federal Charges
Some subtle differences exist as to how federal and state laws define child pornography, but differences as to what exactly is depicted in alleged child pornography may not be the deciding statutory factor in determining whether charges are brought in state or federal court. Federal child pornography charges are only applicable in two instances: when illegal conduct is alleged to have occurred in a federal jurisdiction, or when illegal conduct implicates interstate or foreign commerce.
Offenses in federal jurisdictions are relatively straightforward: territories or possessions of the United States and U.S. maritime waters are examples of federal jurisdictions. Any area where the federal government fulfills the role normally played by state governments is an area of federal jurisdiction.
The implication of foreign or interstate commerce may be a slightly more difficult concept to grasp. For child pornography offenses that occurred in a U.S. state to be charged federally, they must have "affected" interstate or foreign commerce. This can mean that an item of child pornography was sent through the U.S. mail, whether or not it actually crossed state lines. It can mean that a pornographic image of a minor was emailed via computer to someone in another state, or even to someone in the same state when the computer server for the email account is located in another state (given the complex nature of the internet, almost any child pornography depiction transmitted electronically fulfils the requirement of affecting interstate commerce). Even when an image itself has not crossed state lines, federal child pornography laws may still come into play if the materials used to create the offending image -- the CD Rom on which an image is stored, the film with which child pornography was created, etc. -- were originally manufactured or sold in another state or country, or otherwise traveled in interstate or foreign commerce. Considering that most images of child pornography these days are passed electronically, and most equipment that can be used to create explicit content is a product of the global economy, the federal "interstate commerce" requirement is not a hard burden to meet in prosecuting a child porn charge.
Different Penalty Structures Put the Accused In Need Of a Strong Defense
Perhaps the most meaningful difference between state and federal child pornography charges comes in terms of resources. The federal government earmarks huge amounts of funding for tracking down and imprisoning individuals who possess, receive, distribute or produce child pornography. Facing down the full power of the federal government is no easy task for a defendant seeking to uphold his or her rights, and federal sentencing guidelines take a very hard-line approach to child pornography offenses.
Federal laws are tough, but Washington's own state-level child pornography offenses are nothing to be trifled with. In 2010, state lawmakers passed a bill that empowered prosecutors to charge defendants with separate offenses for each allegedly pornographic image and also clarified that simply viewing a minor engaged in sexually explicit conduct over the internet -- even without downloading or retaining any imagery -- is still a class B felony.
Child pornography can be any visual depiction of a minor engaged in sexually explicit conduct, whether a photograph, film, video, picture, computer image, or, in certain cases, even a drawing, cartoon, sculpture or painting. Given the web-like nature of interstate commerce, most child porn offenses can be prosecuted under state laws, federal laws or both. And, any child porn charge carries gravely serious penalties, including the possibility of substantial prison time and lifetime registration as a sex offender.
If you are facing or may soon be facing child pornography charges, do not trust your freedom, your reputation and your life to just anyone. Contact an experienced sex crimes defense attorney today.
Article provided by The Meryhew Law Group, A Professional Limited Liability Corporation (PLLC)
Visit us at http://www.meryhewlaw.com/
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