As an initial matter, no one should produce or view child pornography. It is extremely harmful, to say the least, to the persons depicted in the images and can subject the possessor/viewer to severe criminal sanctions. However, there are circumstances where a person can be wrongfully accused of intentionally possessing such material. For example, the images could be of younger-looking adults, the images may have been downloaded by another person with access to the computer, or, if the computer was purchased used, a prior user may have downloaded the images. There may be defenses and we can help.

Fla. Stat. 827.071

Under Fla. Stat. 827.071(5), it is a third-degree felony to possess child pornography. “Child pornography” is, quite simply, any sexual conduct involving a person under 18 years of age recorded on an image or movie. If a person views or possesses child pornography, they are looking at a maximum of 5 years in Florida Stat Prison and/or a $5,000 fine.

As was mentioned, even the viewing of such items is a felony. However, the viewing must be intentional. This is defined “to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.” Fla. Stat. 827.071(1)(b).

Additionally, under the same statute, if the person charged participated in the creation, promotion, or dissemination of child pornography, the crime becomes a second-degree felony punishable by up to 15 years in Florida Stat Prison and/or a $10,000 fine.

Lastly, with regards to this statute, if an image or movie contains more than one child, each child so depicted is a separate charge. For example, if two children are shown in a single image of child pornography, this single image will result in two separate third-degree felony charges.

Fla. Stat. 775.0847

Under this statute, Fla. Stat. 775.0847, the charges and penalties for possession of child pornography can be further increased. The law reads:

(2) A violation of s. 827.071, s. 847.0135, s. 847.0137, or s. 847.0138 shall be reclassified to the next higher degree as provided in subsection (3) if:

(a) The offender possesses 10 or more images of any form of child pornography regardless of content; and

(b) The content of at least one image contains one or more of the following:

1. A child who is younger than the age of 5.

2. Sadomasochistic abuse involving a child.

3. Sexual battery involving a child.

4. Sexual bestiality involving a child.

5. Any movie involving a child, regardless of length and regardless of whether the movie contains sound.

(3)(a) In the case of a felony of the third degree, the offense is reclassified to a felony of the second degree.

(b) In the case of a felony of the second degree, the offense is reclassified to a felony of the first degree.

As such, if an offender possesses 12 child pornography images and 1 child pornography movie, that offender will be looking at 13 counts of possession of child pornography with each count charged as a second-degree felony. This, essentially, triples the maximum sentence faced by the offender.

What Can Be Done?

These cases are difficult. If there aren’t any factual or legal defenses, we can work to mitigate the case in an attempt to avoid prison and having to register as a sexual offender. Part of this includes a psycho-sexual evaluation by a licensed psychiatrist. With a positive report showing that the risk of reoffending is minimal, we can sometimes negotiate a favorable resolution. Obviously, the outcome of your case will depend on its specific facts and circumstances. Give us a call today at 813.416.7965 to set up your free consultation!