Transmission of Harmful Material
Knowingly sending or transmitting harmful images, information, or date to a minor child can be charged as a third degree felony under Section 847.0138(2). The statute does not apply to subscription-based transmissions such as list servers.
To prove the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment under section 847.0138(2), Florida Statutes, at trial, the prosecutor with the State Attorney’s Office must prove the following three elements beyond all reasonable doubt:
- The defendant knowingly sent an image, information, or data that he or she knew or believed to be “harmful to minors.”
- The defendant sent the image, information, or data to a specific individual who was either actually known by him or her to be a minor or believed by him or her to be a minor.
- The defendant sent the image, information, or data via electronic mail.
After the arrest, the jail inquiry page with the mugshot will list the offense as “TRANSMISSION OF HARMFUL MATERIAL TO MINOR (LEWD5080)” which carries a standard bond of $2,000.
If you are accused of transmission of material harmful to a minor under Section 847.0138(2), then contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.
Attorney for Transmission of Harmful Material in Tampa, FL
The attorneys at Sammis Law Firm represent clients charged with the transmission of harmful materials to minors and related charges including:
- TRAVELING TO MEET MINOR AFTER USING COMP SERVICES/DEVICES TO SOLICIT CERTAIN ILLEGAL ACTS (LEWD5073) in violation of Section 847.0135(4)(a) ;
- USE OF COMPUTER SERVICES OR DEVICES TO SOLICIT CERTAIN ILLEGAL ACTS (LEWD5071); or
UNLAWFUL USE OF TWO WAY COMMUNICATIONS DEVICE (MISC1354).
We are experienced in fighting allegations involving sexually motivated offenses in Tampa, FL, and throughout the surrounding parts of the greater Tampa Bay area.
Our main office is conveniently located in downtown Tampa. We have a second office in New Port Richey in Pasco County, FL, across from the West Pasco Judicial Center.
Contact us to find out more about the charge pending against you, the potential penalties, and the best possible defenses that can be used to fight the accusation.
Call (813) 250-0500.
When is the Material “Harmful to Minors”?
An image, information, or data that is “harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
- Predominately appeals to a prurient, shameful, or morbid interest;
- Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and
- Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
A mother’s breastfeeding of her baby is not under any circumstance “harmful to minors.” Likewise, a mother’s breastfeeding of her baby does not under any circumstance constitute “nudity” or “sexual conduct” irrespective of whether or not the nipple is covered during or incidental to feeding.
Definitions in Florida’s Transmission of Material Harmful to Minors Statute
The statutory scheme for crimes against children defines many of the terms included in the statute that prohibits the transmission of material harmful to a minor including:
- Minor – Under § 847.0137(1)(a), Fla. Stat., the term “minor” means any person less than 18 years of age.
- Nudity – Under § 847.001(9), Fla. Stat., the term “nudity” means:
- the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or
- the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or
- the depiction of covered male genitals in a discernibly turgid state.
- Sexual Conduct – Under § 847.001(16), Fla. Stat., the term “sexual conduct” means:
- actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
- actual lewd exhibition of the genitals;
- actual physical contact with a person’s clothed or unclosed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify 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.
- Simulated – Under § 847.001(19), Fla. Stat., the term “simulated” means the explicit depiction of conduct described in the definition of “sexual conduct” which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
- Deviate Sexual Intercourse – Under § 847.001(5), Fla. Stat., the term “deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.
- Sadomasochistic Abuse – Under § 847.001(13), Fla. Stat., the term “sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
- Sexual Battery – Under § 847.001(14), Fla. Stat., the term “Sexual Battery” means:
- oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by a finger or any other object;
- however, “sexual battery” does not include an act done for a bona fide medical purpose.
- Sexual Excitement – Under § 847.001(17), Fla. Stat., the term “sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.
Sexual Offenses by School Authority Figures Against Students
Under § 775.0862, Fla. Stat., the penalties for the offense are enhanced for sexual offenses committed against a student by any school authority figure. In these cases, the jury is instructed that:
If you find that (defendant) committed the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.
The term “authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
The term “school” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults.
Under § 775.0862(1)(b), Fla. Stat., the following terms are defined including “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”
The term “student” means a person younger than 18 years of age who is enrolled at a school.
Standard Jury Instructions for Harmful to Minor Crimes
The courts have suggested that the Supreme Court Committee on Standard Jury Instructions in Criminal Cases should be amended for section 847.0138(2)—see Std. Jury Instr. (Crim.) 11.21—to define the terms “prurient interest” and “morbid interest” as is done in the instructions for other chapter 847 crimes in which those terms are used. See Std. Jury Instr. (Crim.) 24.1–24.6.
Those terms are key components of the statutory definition of “harmful to minors”—which is the crux of section 847.0138(2).
The Standard Jury Instructions for the crime of “Transmission of Material Harmful to Minors by Electronic Device or Equipment” under § 847.0138(2), Fla. Stat., are found in Chapter 11.21. The jury instruction was adopted in 2015.
This article was last updated on Thursday, November 1, 2018.