Child Pornography Crimes in Florida

Even juveniles who are under the age of 18 years old can be accused of “child pornography” because they possess or send an image or video of another person their same age on a cell phone, tablet or computer.

The Florida Legislature recently created a special statute for juveniles accused of “sexting” although any accusation remains extremely serious.

When an adult possesses such an image, people often assume that the person either is a child molester or will become a child molester.

Scientific research shows that most passive viewers of these images never molest children. Nevertheless, Florida law provides for incredibly harsh sentencing requirements for these types of charges.

As a practical matter, the penalties imposed for child pornography charges might be harsher than the penalties imposed for actually committing an act of child molestation.

If you have been charged with any child pornography charge under state or federal law then contact a criminal defense attorney in Tampa, FL, at Sammis Law Firm to discuss your case.

After the investigation begins, never speak with any law enforcement officer or any other person about the accusation until after you have consulted with and hired a criminal defense attorney.

You can invoke your rights by saying, “I am taking the 5th and 6th Amendments. I will not make any statements until my attorney is present.” You can give the officer your name, address, and date of birth upon request, while still refusing to answer any other questions.

In most of these cases, a person’s first indication that a criminal investigation for child pornography has begun is when law enforcement officers descend on the home or business with a search warrant to seize computers and other evidence.

If your home or business was recently listed in a search warrant, then call an attorney immediately.

Even completely innocent people should invoke their right to remain silent. Your attorney is in the best position to present your side of the case and favorable evidence to the prosecutor and law enforcement officers investigating the case.

In most of these cases, the prosecutor has a much easier time prosecuting the case if you make any statements.

Attorneys for Child Pornography Crimes in Tampa, FL

The criminal defense attorneys at Sammis Law Firm represent clients charged with child pornography and other sexually motivated crimes throughout Tampa Bay, Florida.

Contact us to find out more about how to fight sex crimes involving computer crimes and other technology-facilitated crimes against children.

Our offices are located in downtown Tampa, just a few blocks from the federal courthouse and the state courthouse. We also have a second office in New Port Richey, FL, in Pasco County.

On December 5, 2018, the jury returned a “not guilty” in a case pending before the Honorable Susan L. Barthle in Dade City, FL. The crime of Lewd and Lascivious Molestation is a first degree felony, punishable by life in prison (with a 25 year minimum mandatory prison sentence).

Instead of facing those penalties, our client was exonerated and walked out of the courthouse with us after the jury returned the “not guilty” verdict. Leslie M. Sammis was the lead attorney in the case.

Disclaimer: The facts of your case may differ from the facts discussed here. Not all case results are listed here. The case results discussed here are not necessarily representative of the results obtained in all cases. Each case is different and must be evaluated and handled on its own merit.

We fight these types of cases in Tampa, Hillsborough County, New Port Richey and Dade City in Pasco County, Bartow and Lakeland in Polk County, Brooksville in Hernando County, Bradenton in Hernando County, and St. Petersburg or Clearwater in Pinellas County, FL.

Let us put our experience to work for you. We can begin your defense today.

Call (813) 250-0500 today.


Definition of Child Pornography under Florida Law

Child pornography is defined, as any image depicting a minor, any person under the age of 18, engaged in sexual conduct under Section 847.001, F.S. Florida law contains a variety of statutes that prohibit acts relating to child pornography found in two different chapters, ch. 827, F.S., and ch, 847, F.S.

Florida Statute 847.001(3) defines the term “child pornography” to mean any image including an image on a website or downloaded from the internet depicting a minor child under the age of 18 years old engaged in sexual conduct.

Florida Statute 847.001(16) defines the term “sexual conduct” to mean:

  • deviate sexual intercourse;
  • actual sexual intercourse;
  • actual lewd exhibition of the genitals;
  • simulated sexual intercourse;
  • sadomasochistic abuse;
  • sexual bestiality;
  • masturbation;
  • actual physical contact with a person’s unclothed or clothed genitals, buttocks, pubic area, or, if such person is a female, breast with the intent to gratify or arouse the sexual desire of either party; or
  • any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Florida Statute Section 847.001(16) further excludes under any circumstances a mother’s breastfeeding of her baby from the definition of “sexual conduct.”

Florida law makes a distinction between “child pornography” which is illegal and “child erotica” which is generally not illegal.

The term “child erotica” includes children being photographed in a manner that does not meet the definition of sexual conduct even though the minor child is photographed in a partially nude or nude pose.

The term “identifiable minor” may not be construed to require proof of the actual identity
of the identifiable minor.


Third Degree Felony for Possession of Child Pornography

Third-degree felonies for child pornography under state law include transmitting, distributing, possessing, and manufacturing child pornography under Florida Statutes Section 847.0135, 847.0138 and 827.071.

A third-degree felony is punishable by five (5) years in Florida State Prison and includes an allegation of viewing or downloading any child pornography image.

Sharing the image with another person can increase the severity of the charge to a second-degree felony which is punishable by up to 15 years in Florida State Prison.

Promoting or producing the child pornography image carries the most severe penalties which can be charged as a first-degree felony punishable by up to 30 years in Florida State Prison for each charge, and the crime can carry a minimum prison sentence of 5 to 13 years in Florida State Prison.

Examples of child pornography laws in the State of Florida include:

  • Giving Obscene Material to a Minor § 847.0133, Fla. Stat.;
  • Transmission of Material Harmful to Minors by Electronic Device or Equipment § 847.0138(2), Fla. Stat.;
  • Transmission of Child Pornography by Electronic Device or Equipment § 847.0137(2) and (3), Fla. Stat.
  • [Possession] [Control] [Intentional Viewing] of Material Including Sexual Conduct by a Child § 827.071(5)(a), Fla. Stat.; and
  • Possession of Material Including Sexual Conduct by a Child with Intent to Promote § 827.071(4), Fla. Stat.

Separate Images Result in Separate Charges and Increased Penalties

Each image can be charged as a distinct criminal offense. The number of different criminal offenses or charges will increase the penalties.

Prosecutors argue that each image requires effort and time to acquire and therefore is an indication of the interest and involvement of the person accused.

However, when images are downloaded from the internet, it is possible to download hundreds or thousands of images at a time which decreases the likelihood that the number of images reflects a need for stricter punishment.


Computer Pornography in Florida

The statute of limitations for computer pornography crimes in Florida is three years when the crime is charged under Florida Statute Section 847.0135(2) as a third-degree felony.
The crime of computer pornography requires proof that:
  • (2)(a) a person knowingly compiles, enters into, or transmits by use of computer;
  • (2)(b) makes, prints, publishes, or reproduces by other computerized means;
  • (2)(c) knowingly causes or allows to be entered into or transmitted by use of computer;
  • (2)(d) or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.

Possession of Photographic Material

Florida law prohibits the possession of photographic materials that include sexual conduct by a child.

  • Section 827.071(4) is a Level 5 offense that makes it a second degree felony to possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
  • Section 827.071(5) is a Level 6 offense that makes it a third degree felony to possess any photographic material, motion picture, etc., which includes sexual conduct by a child.
  • Section 827.071(2) & (3) is a Level 6 offense that makes it a second degree felony to use or induce a child in a sexual performance or promote or direct such performance.

After a conviction for any of these offenses when the court orders probation, the defendant will be sentenced to “Sex Offender Probation.” The court must impose specific special conditions, as set forth in s. 948.03(5)(b), in addition to all other standard and special conditions imposed.

Sex Offender Probation is designed to enhance the protection of the community and to require treatment/counseling for the offender.

The offender is also required to submit two specimens of blood to the Florida Department of Law Enforcement to be registered with the DNA data bank.


Child Pornography under Federal Laws

Child pornography crimes can be prosecuted under state or federal law. Federal law, under 18 U.S.C. Section 2256(1) and (8) defines child pornography as the visual depiction of a child under the age of 18 years old engaged in sexually-explicit conduct.

Illegal contraband would include any image of a child engaged in any type of conduct that is considered “sexually explicit.”

The term “sexually explicit” does not require that the image shows the child engaged in sexual activity but can include even a picture of a naked child if it is sufficiently sexually suggestive. The visual depiction can include:

  • photographs;
  • videotape;
  • video;
  • images or videos downloaded from a website or the internet;
  • undeveloped videotape or film;
  • data stored electronically which can be converted into a visual image; or
  • images stored on a computer disk or other electronic forum.

Under federal child pornography laws, it is illegal to receive, produce, distribute or possess any type of child pornography that affects foreign or interstate commerce.

Federal jurisdiction to prosecute child pornography can arise when the visual image is moved across state lines or when the image was created using equipment or materials that were moved across state lines including:

  • 18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography);
  • 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution, and receipt of child pornography);
  • 18 U.S.C. § 2252A- certain activities relating to material constituting or containing child pornography; and
  • 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States.

The jurisdictional element in federal child pornography charges can be satisfied when the pornographic images are moved electronically through a computer connection online, via e-mail, or the mail. As a practical matter, because of the nature of electronic communications most if not all such communications would invoke federal jurisdiction.


Crimes for Deep Fakes in Florida

The Florida legislature recently passed 2022 SB 1798 – Sexually Related Offenses. The new legislation provides criminal and civil penalties for persons who promote certain altered sexual depictions, aka “deep fakes.”

The new legislation which takes effect on October 1, 2022, does the following:

  • amends 775.0847, redefining the term “child pornography,” and adding the definition “any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.”
  • provides criminal and civil penalties for persons who promote certain altered sexual depictions, aka “deep fakes.”
  • provides that a person commits a third degree felony when the person willfully and maliciously promotes any altered sexual depiction of an identifiable person, without that person’s consent, and who knows or reasonably should have known such visual depiction was altered.
  • amends 775.0847, redefining the term “child pornography,” and adding the definition “any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.”
  • creates 775.0847(c), defining the term “identifiable minor” as a
    person:

    • Who was a minor at the time the image was created, altered, adapted,
      or modified, or whose image as a minor was used in the creating,
      altering, adapting, or modifying of the image, and;
    • Who is recognizable as an actual person by the person’s face, likeness,
      or other distinguishing characteristic, such as a unique birthmark, or
      other recognizable features.
  • amends 775.0847(2)(b)5., adding to violations that can be reclassified to the next higher degree in subsection (3), if the offender possesses 10 or more images in any form of child pornography regardless of content, and
  • any motion picture, film, video or computer-generated motion picture, film, or video, involving a child, regardless of length and regardless of whether the motion picture, film, video or computer-generated motion picture, film or video contains sound.
  • amends 827.071, defining the term “child” and “minor” to mean any person, whose identity is known or unknown, younger than 18 years of age; defining the term “child pornography” as in FS 775.0847; defining the term “identifiable minor” as in FS 775.0847.
  • amends FS 828.126(1), redefining “sexual conduct with an animal” as meaning any act committed between a person and an animal for the purpose of sexual gratification, abuse, or financial gain which involves:
    • Contact between the sex organ or anus of one and the mouth, sex organ, or anus of the other;
    • The fondling of the sex organ or anus of an animal;
    • The insertion, however slight, of any part of the body of a person or any object into the vaginal or anal opening of an animal, or the insertion of any part of the body of an animal into the vaginal or anal opening of a person.
  • creates FS 836.13, defining terms “altered sexual depiction,” “identifiable person,” “nude body parts,” “promote,” “visual depiction”;
  • prohibiting that the willful and malicious promotion of certain sexual depictions without consent and is punishable as a felony of the third degree;
  • a disclaimer which notifies the viewer that person(s) depicted did not consent or participate in the creation of the material is not a defense and does not relieve a person of criminal liability under this section.
  • creates FS 836.14, defining terms “identifiable person,” “promote,” “sexually explicit image”;
  • prohibiting a person from committing theft of sexually explicit images with the intent to promote such images;
  • prohibiting willful possession of sexually explicit images with the intent to promote such images and with certain knowledge;
  • prohibiting the promotion of sexually explicit images of identifiable persons for financial gain;
  • violations are punishable as a felony in the third degree,
  • except for willful promotion through the use of print media, an internet website, or other electronic means, for pecuniary or other financial gain without the consent of an identifiable person, which is punishable as a felony in the second degree
  • amends FS 847.001, defining terms “identifiable minor” and “promote.”
  • amends FS 847.011, providing that law enforcement may arrest without a warrant any person who they have probable cause to believe violated paragraph (b) (possessions of child pornography, child-like sex doll);
  • also provides that upon proper affidavits being made, a search warrant may be issued to further investigate a violation of paragraph (b), including to search a private dwelling.
  • amends 921.0022, offense severity ranking chart.
  • increases the monetary damages from $5,000 to $10,000 that a victim of sexual cyber-harassment may receive as a result of a civil action
  • penalties under FS 836.13 and FS 836.14 do not apply to providers of interactive computer service, information service, or communications service which provides transmission, storage, or caching of electronic communications or messages of others, another related telecommunications or commercial mobile radio service, or content provided by another person

The statute provides that the penalties do not apply to:

  • Law enforcement officer, or any local, state, federal or military law enforcement agency that disseminates a sexually explicit image in connection with the performances of his or her duties;
  • A person reporting unlawful activity; or
  • A person participating in a hearing, trial or other legal proceeding.

Criminal and civil penalties also do not apply to sexually explicit
images:

  • Involving voluntary exposure in a public or commercial setting; or
  • Possessed or promoted by a bona fide news media organization for a legitimate and newsworthy purpose.

Additional Resources

Child Pornography Computer Crimes – The Florida Department of Law Enforcement (FDLE) website discusses child pornography including definitions, facts, history, and child safety prevention tips. Find out more about recent investigations and people accused of these serious criminal offenses.

Central Florida ICAC (Internet Crimes Against Children) affiliates – Learn more about how the Polk County Sheriff’s office in Florida is an affiliate of the ICAC. Founded in 1998, the Internet Crimes Against Child Task Force Program (ICAC Program) started with 10 Task Forces across the United States. Today, it has grown to 61 coordinated Task Forces representing more than three thousand prosecutorial agencies, local law enforcement agencies, as well as state and federal law enforcement agencies that engage in proactive and reactive investigations and prosecutions. Learn more about Child Pornography investigations in Polk County, Florida.


Finding an Attorney for Child Pornography Charges in Tampa

If you have been charged with or are under investigation for any child pornography case, sexual battery, or lewd and lascivious behavior in the Tampa Bay area then contact a criminal defense attorney at the Sammis Law Firm.

We represent clients charge on a wide range of crimes considered to be sexually motivated including child pornography charges in Tampa for Hillsborough County, Bartow or Lakeland for Polk County, New Port Richey or Dade City for Pasco County, Bradenton for Manatee County, Brooksville for Hernando County, or Clearwater or St. Petersburg for Pinellas County, FL.

Those charges include selling or buying of minors under §847.0145, Florida Statutes, computer pornography under §847.0135(2) or (3), Florida Statutes; or transmission of child pornography under §847.0137, Florida Statutes.

Many of these cases start with the execution of a search warrant by the SWAT Team and detectives with the local police department.

The search warrants are often obtained after an ongoing investigation that was initiated because of information received from the North Florida Internet Crimes Against Children Taskforce (ICAC). ICAC is an entity that monitors the internet for criminal activity involving children.

Our offices are located in downtown Tampa, just a few blocks from the federal or state courthouse.

Call (813) 250-0500 today for a free consultation. Let us put our experience to work for you.


This article was last updated on Monday, October 10, 2022.