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Colorado Criminal Defense – Child Pornography Distribution – Lime Wire and Similar File Sharing Programs

As a Denver, Colorado Criminal Defense Lawyer/Attorney I have represented many people charged with various offenses related to the possession, distribution and manufacturing of child pornography.  It is critical in this area – to understand the law.  Below – I compare Federal Criminal Child Pornography Laws to Colorado’s Sexual Exploitation Laws

Concurrent – Dual / State – Federal Jurisdiction

Jurisdiction exists to prosecute these cases in both Federal Court by the US Attorney’s Office and the State Court system. Where there is dual jurisdiction, the penalties are much harsher in the federal system. In fact, there are mandatory minimum sentences in Federal Court of 5 years for receiving, 10 years for distribution, and 15 years for manufacturing child pornography. There are mandatory sentences in the state system.

Here are the relevant Federal System Criminal Charges: Federal Laws Relating to Child Pornography

18 U.S.C. 1466a | Obscene Visual Representations of the Sexual Abuse of Children

It is forbidden to knowingly produce, distribute, receive, or possess with the intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that….

depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.

Attempts or conspiracies to knowingly produce, distribute, receive, or possess with the intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value, are also forbidden.

It is forbidden to knowingly possess a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value, if one of the…circumstances [noted below] is present  any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;
any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States. An attempt to knowingly possess such a visual depiction is also forbidden under the same circumstances.

18 U.S.C. 2251 | Sexual Exploitation of Children

It is forbidden for any person to employ, use, persuade, induce, entice, or coerce any minor to engage or assist any other person to engage in, or to transport any minor in interstate or foreign commerce with the intent that the minor engage in, any sexually explicit conduct if such person knows or has reason to know that such visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

It is forbidden for any parent, legal guardian, or person having custody or control of a minor to knowingly permit such minor to engage or assist any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct if the parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

It is forbidden for any person to knowingly make, print, or publish, or cause to be made, printed, or published, any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct, or to participate in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct, if such person knows or has reason to know that such notice or advertisement is or will be transported in interstate or foreign commerce by any means including by computer or mail.

18 U.S.C. 2252 | Material Involving the Sexual Exploitation of Minors

It is forbidden for any person to knowingly transport or ship in interstate or foreign commerce by any means, including by computer or through the mail, 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. It is forbidden for any person to knowingly receive or distribute any visual depiction that has been mailed, shipped, or transported in interstate or foreign commerce, or which contains materials that have been so mailed, shipped, or transported, by any means, including by computer, or reproduce any visual depiction for distribution in interstate or foreign commerce by any means, including by computer or through the mail, 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.

It is forbidden to knowingly sell or possess with the intent to sell any visual depiction that has been mailed, shipped, or transported in interstate or foreign commerce, or which was produced using materials that have been so mailed, shipped, or transported, by any means, including 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.

18 U.S.C. 2252a | Material Constituting or Containing Child Pornography

It is forbidden for any person to knowingly mail, or transport or ship in interstate or foreign commerce by any means, including by computer, any child pornography;
receive or distribute any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer or material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; advertise, promote, present, distribute, or solicit through the mail, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains …

…an obscene visual depiction of a minor engaging in sexually explicit conduct; ora visual depiction of an actual minor engaging in sexually explicit conduct; reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; sell or possess with the intent to sell any child pornography; possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or distribute, offer, send, or provide to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or if such distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer, for the purpose of inducing or persuading a minor to participate in any activity that is illegal.

18 U.SC. 2256 | Child Pornography Defined

Child pornography is defined as any visual depiction, including any photograph, film, video, 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; such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that 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.

42 U.S.C. 13032 | Reporting of Child Pornography by Electronic Communication Service Providers

Whoever, while providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains knowledge of facts or circumstances from which a violation of certain offenses involving child pornography is apparent, must report those facts or circumstances to the [CyberTipline] at the National Center for Missing [&] Exploited Children as soon as is reasonably possible.

Colorado Laws Relating to Child Pornography

Colorado defines the crime of Child Pornography as Sexual Exploitation of a Child

Sexual Exploitation of a Child (18-6-403)

1.The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child’s right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse; that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.

2.As used in this section, unless the context otherwise requires:
(a) “Child” means a person who is less than eighteen years of age.
(b) (Deleted by amendment, L. 2003, p. 1882, § 1, effective July 1, 2003.)
(c) “Erotic fondling” means touching a person’s clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. “Erotic fondling” shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
(d) “Erotic nudity” means the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
(e) “Explicit sexual conduct” means sexual intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual excitement.
(f) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.
(g) “Sadomasochism” means:
(I) Real or simulated flagellation or torture for the purpose of real or simulated sexual stimulation or gratification; or
(II) The real or simulated condition of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.
(h) “Sexual excitement” means the real or simulated condition of human male or female genitals when in a state of real or simulated overt sexual stimulation or arousal.
(i) “Sexual intercourse” means real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal, between persons of the same or opposite sex, or between a human and an animal, or with an artificial genital.
(j) “Sexually exploitative material” means any photograph, motion picture, videotape, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.

3.A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:
(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material; or
(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or
(b.5) Possesses or controls any sexually exploitative material for any purpose; except that this paragraph (b.5) does not apply to peace officers or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or
(c) Possesses with the intent to deal in, sell, or distribute, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or
(d) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the purpose of producing a performance.
4.(Deleted by amendment, L. 2003, p. 1882, § 1, effective July 1, 2003.)
5.The sexual exploitation of a child is a class 3 felony; except that sexual exploitation of a child by possession of sexually exploitative material pursuant to paragraph (b.5) of subsection (3) of this section is a class 6 felony, but a second or subsequent offense by such possession or a first or subsequent offense of possession of more than twenty different items qualifying as sexually exploitative material is a class 4 felony.
6.If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.

H. Michael’s Take

For the last several years there has been a significant increase in the number and nature of these kinds of charges. This are is rife with traps for the unwary.  One area of concern are websites that are used to distribute pornographic materials.

Limewire: Peer to Peer Networks

Peer-to-Peer Sharing – Internet File Sharing (Limewire, et, al.)

Peer-to-peer sharing is a way of sharing files via the internet. The computers in a peer-to-peer network use diverse connectivity between participants. These networks make file sharing easier because each computer can directly connect with the other, without a server in the middle. Tthe individual computers act as servers to one another and allow file sharing, downloads and uploads. Peer-to-peer sharing is also referred to as “P2P”.

Peer-to-peer sharing in some instances has been linked to the distribution of child pornography.

It is imperative that you consult a Criminal defense attorney as soon as possible if you have you been accused of the possession, production or unlawful distribution of child pornography in conjunction with a peer-to-peer network. You may face very serious charges under state or federal law, and a conviction may result in long-term imprisonment in state prison, large fines, probation and sex offender registration.

Just one of the criminal penalties associated with a child pornography conviction is enough to forever change your life. Together, the consequences of a conviction are disastrous. You may lose your freedom, your job, and custody of your children. Your reputation may never recover. You may have to register as a sex offender, a label that will last a lifetime. By working with a defense lawyer, you have the opportunity to avoid these consequences and can instead move on with your life.

Defenses To Child Pornography Charges:

There are times when young people experiment on the internet.  They download material out of curiosity and somewhat innocently from Websites such as Limewire, Kazaa and others without fully knowing or understanding the waters in which they are swimming.  These are the most tragic cases.

Many court cases now use “Dost factors” (named after the U.S. v. Dost case in 1986) to determine whether an image is pornographic: these factors ask whether the focal point of the visual depiction is the child’s genital region; whether the setting of the image is sexually suggestive; whether the child is posed unnaturally or in inappropriate attire; whether the child is nude, semi-clothed or fully clothed; whether the picture indicates the child’s willingness to engage in sexual activity; and whether the image is intended to elicit a sexual response in its consumer or viewer. Notwithstanding the popularity of these factors, the U.S. Supreme Court has also stated that fully clothed images may constitute child pornography.

In recent years, much attention has been given to the presence and availability of child pornography on the Internet. Laws such as the Child Online Protection Act (47 U. S. C. §231) and the Children’s Internet Protection Act (47 U.S.C. § 254) outlaw child pornography and cover new media such as websites and other online forms of child porn.

Prosecution of child pornographers can be pursued through many agencies, which include the FBI, the Department of Justice, the U.S. Postal Inspection Service, U.S. Customs, the U.S. Attorney General, state attorneys general, state and local law enforcement, and local prosecutors. The government often participates in sting operations to catch child pornographers and consumers of child pornography. Consumption of child pornography can lead to a maximum penalty of five years in federal prison, while distribution of child pornography has a maximum penalty of 15 years in federal prison.

Defenses in child pornography cases are among the following:

Was there a problem with government seizure? Or a problem with government investigation? That is the forensic analysis of the computer?

Was the client’s PC was hacked? By a spouse a roommate – someone who gained access to the client’s wifi – other?

Was the contraband only in deleted and/or unallocated space?

Was the material a result of pop-ups on the web?

Is it really child pornography? (No known victim too close to call (could be 18 years old)
Was this a National Geographic situation (posed child nude children not pornography. The pose must be sexual in nature or obscene;)

Was this Entrapment?

Can the Prosecution prove the knowledge requirement as to age of persons depicted?

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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