Few offenses are viewed in a worse light than the sexual exploitation of a child. As such, they are often pursued to the fullest extent of the law.
Every state has its own set of laws governing child pornography. However, the sexual exploitation of a minor is also a federal crime. When child pornography charges are brought, it is important to know which government agency has jurisdiction.
What is Considered Child Pornography?
Child pornography is a generalized term used to describe a wide range of illegal activities and materials. Currently, child pornography consists of any visual depictions of minors engaged in a sexual activity, no clothing, or less clothing than reasonable clothing.
Illegal activities include:
- Producing child pornography
- Possessing child pornography
- Distributing child pornography
Visual depictions may be illustrated, written, or computer generated.
Are Child Pornography Charges State or Federal?
The federal government and all 50 states have laws against child pornography. However, whether the charges are prosecuted in state or federal court largely depends on the following factors:
- Is the arresting agent a federal or state employee?
- Did the crime occur on federal property, like a national park?
- Did the illegal material or acts cross state lines?
Typically, child pornography cases are handled in federal court. In many instances, the illegal content is sold and shared via the internet. The dark web is especially full of child exploitative images.
If you are accused of sending or receiving child porn to someone outside of Massachusetts, your case will likely be held in federal court.
Can I Be Charged in Both State and Federal Court?
In short, yes, people can be charged in both state and federal court for the same crime. Under the doctrine of dual sovereignty, if a person breaks the law in each government, both have the right to pursue charges. The state and the national government are considered separate sovereigns.
For example, a Minnesota man was arrested on state child pornography charges involving prepubescent children. Federal prosecutors also indicted the man for production and attempted production of child porn.
However, in some cases, one sovereign may drop or dismiss charges while the other continues to prosecute. In Iowa, state child pornography production and distribution charges were dropped while the federal charges remain.
Are The Penalties Different for Federal and State Child Pornography Crimes?
While there are subtle variances between the law, the biggest difference is how states and federal courts penalize child pornography.
Producing Child Pornography
Under Massachusetts law, a conviction of producing child pornography carries the following penalties:
- Prison sentence between 10 to 20 years
- A fine between $10,000 to $50,000
Federal penalties tend to be more severe. For example, if a person coerces someone under the age of 18 into engaging in a sex act for the production of visual materials, they can be punished by:
- 15 years to life in federal prison
Penalties depend on the number of offenses. In many cases, a third offense for child pornography will result in the maximum sentence.
Possessing Child Pornography
The state penalties for child pornography possession include:
- A state prison sentence of 5 to 10 years
- $1,000 to $30,000 in fines
Federal child pornography possession penalties depend on the age of the child. For example, if the child is 12 years old or older, a person can be sentenced to up to 10 years in prison and $250,000 in fines. However, if the child depicted in the material is prepubescent or under 12, the offending party can spend up to 20 years behind bars.
Distributing Child Pornography
State law penalizes distributing, or disseminating, child porn as such:
- 10 to 20 years in state prison
- $10,000 to $50,000 in fines or
- 3 times what the person gained from distribution
Under federal law, the penalty for distributing child pornography is 20 years in prison for a first offense.
What is the Average Sentence for a Child Pornography Offense?
Child pornography has steadily declined in recent years. According to a detailed study by the United States Sentencing Commission, child pornography offenses have decreased by 35.8% over the last four years.
In the last reporting year, more than 1,000 cases of child pornography were reported to the U.S. Sentencing Commission:
- 45.1% of violations were for possession
- 41.9% of convictions were sentenced for trafficking child pornography
- 13% of offenders received child pornography
The majority of those convicted for child pornography had no prior history of offenses. In fact, 72.9% of cases have no criminal history.
Being convicted of child pornography generally involves time in prison. Of all child pornography offenders, 99.3% were sentenced to federal prison. The average prison sentence was 8 years, though sentences differed across charges:
- Trafficking child porn resulted in an average of 11 years in prison
- Receiving child pornography carried an average of 8 years
- Possessing child porn averaged 6 years in federal prison
It is important to note that charges are often stacked in federal and state cases. Multiple charges can lead to consecutive sentences.
What is the Difference Between Consecutive and Concurrent Sentences?
If convicted, a judge has the authority to impose consecutive or concurrent sentences. Under concurrent sentencing, if a person is sentenced to serve their prison sentence at the same time.
For instance, suppose a person is convicted of 3 counts of child possession. They are sentenced to 5 years per child possession charge. A concurrent sentence would allow them to serve 5 years for each charge at the same time.
Conversely, consecutive sentences mean that a person must serve each sentence separately. To use the example above, the convicted person would have to serve 5 years per charge or 15 years altogether.
Consecutive sentencing is often referred to as stacked sentencing in that one penalty is stacked on top of the other.
What You Should Know if Accused of Child Pornography in Massachusetts
The federal government and the state of Massachusetts take a hard stance against child pornography. If accused, a person may be charged in both courts. When judges decide to use consecutive sentences, it is not uncommon for a convicted offender to spend decades behind bars.
Accusations of child pornography should be taken seriously. Having a child pornography defense attorney in Massachusetts early on is the best way to make a strong case.