The act of sexual exploitation of a child is criminalized under Sec 311 of the California Penal Code. There are two ways that this crime is committed, one through child pornography or through sexual battery of a child.
Both these acts are prosecuted as felony offenses and depending on the attendant circumstances, the crime can be tried in either state or federal courts.
Child pornography, by definition, is the production of material that depicts minors engaged in or simulating sexual acts and other similar conduct. Sexual conduct can be sexual intercourse, oral sex, anal sex or other lascivious acts. This includes performance of excretory functions done in a lewd manner or when sexual activity is done between people and/or animals. Furthermore, penetration of any bodily orifice through the use of an object, performance of sadomasochistic acts, masturbation and/or exhibition of genitalia is considered as within the purview of pornography when the purpose of all these acts is for the sexual arousal of the viewer and/or viewers.
Aside from the abovementioned acts, the criminal acts are covered under this provision:
- Secs. 311.1(a) and 311.2(b) of the California Penal Code criminalizes the act of distribution of child pornography;
- Sec 311.4 of the California Penal Code criminalizes the employment of minors to participate in the production of child pornography;
- Sec 311.10 of the California Penal Code criminalizes the advertising of child pornography;
- Sec 311.3 of the California Penal Code criminalizes the act of development, duplication, printing or exchange of child pornography;
Because of the myriad of ways this crime is committed, there is no clear single way that this crime is committed. The following are the basic elements needed though in order to be convicted of this crime:
- The accused knowingly committed any of the specific acts constituting the crime of child pornography;
- The accused had known that the individuals performing the acts were of minor age;
There are also a number of factors that are to be considered when prosecuting this crime. Thus, depending on the exact offense being charged, the accused’s criminal history as well as the determination of the kind of prosecution to be done for the crime would determine the imposable penalties when the individual accused is convicted beyond a reasonable doubt.
Most often, child pornography offenses are prosecuted as a felony offense but depending on the factual circumstances, it can also be prosecuted as misdemeanor offense. The following are the imposable penalties:
- For a misdemeanor offense, the penalty imposable is imprisonment up to one (1) year in county jail and payment of fines up to $2,500;
- For a felony offense, the penalty imposable is between sixteen (16) months to eight (8) years in state prison and payment of fines up to $100,000;
The imposable penalties are enhanced if the accused had previous criminal convictions for the same offense. A further penalty for conviction for either a felony or misdemeanor offense would be Sec 290 of the California Penal Code. This accessory penalty requires the individual convicted of this crime to be registered as a sex offender in the state of California. Other crimes that can be included in this crime are child endangerment, lewd acts with a minor, contribution to the delinquency of a minor and contacting a minor with the intent to commit a sexual offense. All the penalties in each of these separate crimes would be either served concurrently or separately, depending on the recommendation of the prosecutor.
The crime of child abuse and pornography is a serious offense in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.