Federal- Child Pornography
Statute
18 USC 2252. Certain activities relating to material involving the sexual exploitation of minors
- Any person who -
- knowingly transports or ships in interstate or foreign commerce by any means including by computer or
mails, any visual depiction, if -
- the producing of such visual depiction involves the use of a minor engaging in sexually explicit
conduct; and
- such visual depiction is of such conduct;
- knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or
transported in interstate or foreign commerce, or which contains materials which have been mailed or so
shipped or transported, by any means including by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign commerce or through the mails, if -
- the producing of such visual depiction involves the use of a minor engaging in sexually explicit
conduct; and
- such visual depiction is of such conduct;
- either -
- in the special maritime and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the Government of the United States,
or in the Indian country as defined in section 1151 of this title, knowingly sells or possesses with intent
to sell any visual depiction; or
- knowingly sells or possesses with intent to sell any visual depiction that has been mailed, or has been
shipped or transported in interstate or foreign commerce, or which was produced using materials which
have been mailed or so shipped or transported, by any means, including by computer, if -
(i)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; or
- either -
- in the special maritime and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the Government of the United
States, or in the Indian country as defined in section 1151 of this title, knowingly possesses 1 or more
books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction;
or
- knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which was produced using materials which have been mailed or so
shipped or transported, by any means including by computer, if -
- the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
- such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
-
- Whoever violates, or attempts or conspires to violate, paragraphs (!1) (1), (2), or (3) of subsection (a) shall
be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such
person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under
section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child
pornography, such person shall be fined under this title and imprisoned for not less than 15 years not more
than 40 years.
- Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under
this title or imprisoned not more than 10 years, or both, but if such person has a prior conviction under this
chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 10 years nor more than 20 years.
- Affirmative Defense. - It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant -
- possessed less than three matters containing any visual depiction proscribed by that paragraph; and
- promptly and in good faith, and without retaining or allowing any person, other than a law enforcement
agency, to access any visual depiction or copy thereof -
- took reasonable steps to destroy each such visual depiction; or
- reported the matter to a law enforcement agency and afforded that agency access to each such visual
depiction.
Jury Instruction
Transporting or Shipping Material Involving Sexual Exploitation of Minors
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant knowingly transported, shipped, or mailed a visual depiction in interstate or foreign commerce by any means, including a computer;
- That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
- That such visual depiction is of a minor engaged in sexually explicit conduct; and
- That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct
The term “sexually explicit conduct” means actual or simulated:
- sexual intercourse, including genital-genital, oral-genital, or oral-anal contact, whether between persons of the same or opposite sex;
- bestiality;
- masturbation;
- sadistic or masochistic abuse; or
- lascivious exhibition of the genitals or pubic area of any person.
The term “minor” includes any person under the age of eighteen years.
The term visual depiction includes any undeveloped film and videotape, and data stored on a computer disc or by electronic means which is capable of conversion into a visual image.
Receiving and Distributing Material Involving Sexual Exploitation of Minors
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant knowingly received or distributed a visual depiction;
- That such visual depiction was mailed, or was shipped or transported in interstate commerce by any means, including computer;
- That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
- That such visual depiction is of a minor engaged in sexually explicit conduct; and
- That the Defendant knew that at least one of the performers in such visual depiction was a minor and knew that the visual depiction was of such minor engaged in sexually explicit conduct.
The term “sexually explicit conduct” means actual or simulated :
- sexual intercourse, including genital-genital, oral-genital, or oral-anal contact, whether between persons of the same or opposite sex;
- bestiality;
- masturbation;
- sadistic or masochistic abuse; or
- lascivious exhibition of the genitals or pubic area of any person.
The term “minor” includes any person under the age of eighteen years.
The term visual depiction includes any undeveloped film and videotape, and data stored on a computer disc or by electronic means which is capable of conversion into a visual image.
Child Pornography—Transporting or Shipping
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant knowingly transported, shipped, mailed or by computer in interstate or foreign commerce an item or items of “child pornography,” as charged;
- That at the time of such transportation, shipment, mailing, or by computer, the Defendant believed that such items constituted or contained “child pornography” as hereafter defined.
The term “interstate or foreign commerce” means the movement of property from one state to another state or from one state to another country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
The term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device.
The term “child pornography” means nay visual depiction including any photograph, film, video, picture, or computer, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct or such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
The term “sexually explicit conduct” means actual or simulated:
- sexual intercourse, including genital-genital, oral-genital, or oral-anal contact, whether between persons of the same or opposite sex;
- bestiality;
- masturbation;
- sadistic or masochistic abuse; or
- lascivious exhibition of the genitals or pubic area of any person.
The term “minor” includes any person under the age of eighteen years.
The term visual depiction includes any undeveloped film and videotape, and data stored on a computer disc or by electronic means which is capable of conversion into a visual image.
In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed.
Child Pornography—Receiving, Possessing, Distributing
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant knowingly received, possessed, or distributed an item or items of child pornography, as charged;
- That such items of child pornography had been transported, shipped, or mailed in interstate commerce, including by computer, as charged; and
- That at the time of such reception, possession, or distribution, the Defendant believed that such items constituted or contained child pornography, as hereafter defined.
To “distribute” something simply means to deliver to transfer possession of it to someone else, with or without any financial interest in the transaction.
The term “interstate or foreign commerce” means the movement of property from one state to another state or from one state to another country. The term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
The term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand-held calculator, or other similar device.
The term “child pornography” means nay visual depiction including any photograph, film, video, picture, or computer, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct or such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
The term “sexually explicit conduct” means actual or simulated:
sexual intercourse, including genital-genital, oral-genital, or oral-anal contact, whether between persons of the same or opposite sex;
bestiality;
masturbation;
sadistic or masochistic abuse; or
lascivious exhibition of the genitals or pubic area of any person.
The term “minor” includes any person under the age of eighteen years.
The term visual depiction includes any undeveloped film and videotape, and data stored on a computer disc or by electronic means which is capable of conversion into a visual image.
In determining whether a visual depiction constitutes a lascivious exhibition, you should consider the context and setting in which the genitalia or pubic area is being displayed.
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