Published: April 03, 2009
The Internet, Child Sex Crimes and Child Pornography in California
April 03, 2009 /24-7PressRelease/ -- Article provided by Hinkle, Jachimowicz, Pointer & Emanuel. Please visit our Web site at http://www.hjpelaw.com/.
Aggressive laws have been enacted at the state and federal level in an attempt to eradicate the distribution and consumption of child pornography and punish those who commit other sex crimes against children. These laws are often controversial and challenged for violating First Amendment freedoms. In California, laws have been passed aimed at destroying the market for child pornography by targeting not just consumers of the product, but also producers, distributors (including simply forwarding images to friends), retailers and marketers. Penalties also have been increased against convicted sex offenders and crimes that once carried misdemeanor charges have been upgraded to felonies.
Jessica's Law
In 2006, Prop 83, the Sexual Predator Punishment and Control Act, also known as "Jessica's Law", was passed. Prop 83 was an effort by the state to strengthen current laws against sex offenders while also adding a new residency restriction against all sex offenders prohibiting them from living within 2000 feet of a school or park used by children. Prior to the passage of the law, only certain classes of high risk sex offenders faced residency restrictions. Prop 83 also included the requirement that high-risk sex offenders submit to lifetime global positioning system (GPS) monitoring.
Some cities are moving towards adopting stricter residency restrictions than those required under Jessica's Law. For example, in San Diego, the city is considering further restricting registered sex offenders from living even greater distances of places children may be present, such as schools, daycares, libraries and amusement parks.
Possession of Child Pornography
Prop 83 also makes it a felony to possess child pornography. Those charged with possession of child porn face up to one year in county jail or sixteen months, two or three years in state prison, a fine up to $2500 and mandatory registration as a sex offender for life. Before the passage of Prop 83, possession of the material was a misdemeanor under California state law. For those persons previously convicted for possession of child pornography, the penalties increase to up to 6 years in state prison.
Unlike pornography depicting adults in sexually explicit conduct, material with minors does not have to be obscene per se under the law in order to be a violation of California's possession laws. If the images are the product of the sexual abuse of a child, they can be confiscated and the person in possession of them can be charged with felony possession in California. Possession of child pornography in the privacy of your home is not a protected activity under the Federal or California State Constitutions.
The Internet's Role
The Internet has made it easier than ever before to access child pornography. Peer-to-peer sharing allows individuals to download the material directly from other people's computers. Images can be downloaded, emailed, stored and shared at an unprecedented pace. This also creates a trail from one user to another, and everyone in the chain can be convicted of possession of child pornography. Any person, who sent the materials, even to a friend, faces charges not only for possession or distribution, but also for sexual exploitation of a child for sending the materials to others. Photographic sexual exploitation of a child carries penalties of up to $2000, up to one year in a county jail, and lifetime registration as a sex offender.
Just because images or videos have been deleted from a computer does not mean they have been removed from the hard drive. Even after the user has deleted it, child pornography can be recovered from home or work computers and the user can face possession charges, among others.
Prop 83 also added new laws penalizing those who use the Internet to contact or arrange meetings with anyone under 18 years of age (the age of consent) for sexually motivated purposes.
If you use the Internet to contact or attempt to contact someone you know to be a minor or you should reasonably know is a minor for sexual purposes, you will be charged with a felony and face imprisonment in a state prison or county jail. The actual amount of jail or prison time depends on many factors including the intent to commit various acts with a child.
If you arrange to meet with the minor or someone you believe to be a minor for sexual purposes, you may face up to one year in a county jail or up to three years in a state prison in addition to a fine up to $5000.
If you actually arrive at the place and time you arranged for the meeting of the minor, you face a felony conviction and a prison term up to 4 years.
The problem with chat rooms and other Internet sites that allow people to communicate with one another is that you usually do not know whom you are chatting with. People believe they are anonymous on the Internet, but this isn't true. Your identity can be traced through your Internet service provider and files stored on your computer. People get caught up in the fantasy world the Internet creates, and forget they are communicating with real people, who may be minors - or police officers or federal investigators or even a private internet "watchdog" conducting a sting operation to catch sex offenders.
The Adam Walsh Act became federal law in 2006. It established a complex and onerous national sex offender registry law (which will be forthcoming) and made significant changes to sexual abuse, exploitation and transportation crimes, including creation of new crimes, expanding federal jurisdiction over existing crimes, and increasing statutory minimum and/or maximum sentences. The Act did away with the statute of limitations altogether for most sex crimes and placed unfair restrictions on defense attorneys attempting to obtain all evidence in child pornography cases, expanded the government's authority to take DNA from persons not convicted of any crime and added a new provision for civil commitment of "sexually dangerous persons." It also enacted certain victim rights in state prisoner habeas proceedings and a right of sex crime victims to receive damages of $150,000 in civil actions.
Ignorance of the Law is No Defense
Those convicted of any of these crimes will also be required to register in the California sex offender registry, face residency restrictions and have to live with the life-long stigma of being a sex offender, even if it was a one-time mistake. Given the increased attention to enforcing sex crime laws in California and the influx of money and resources into police departments, corrections departments and state and county prosecutors to carry out these laws, it is important to understand the law and the severe penalties you face for violating it.
If you have been charged with a sex crime, it is important to speak to a criminal defense attorney to answer any questions you may have and discuss your rights and legal options.
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