With the growing use of the Internet, the number of child predators who seek to make, distribute, and view images of children being sexually abused continues to skyrocket. Federal law prohibits the production, distribution, importation, reception, or possession of any image of child pornography. As with human trafficking, the basis for charging child pornography as a federal crime comes from the Commerce Clause of the U.S. Constitution. Child pornography becomes a federal crime if any of these elements enter interstate commerce:
Production — Creating a sexually suggestive image of a child that travels across state lines is a federal crime. Having anyone post such an image that you created to the Internet is sufficient to invoke the Commerce Clause. A first conviction can result in fines and a statutory minimum sentence of 15 to 30 years in federal prison. Distribution — Sending a sexually suggestive image of a child across state lines or posting it to the Internet is a federal crime. A conviction results in fines and a statutory minimum sentence of 5 to 20 years in federal prison. Reception — Obtaining a child pornography image from across state lines, or downloading it from the Internet is a federal crime. Possession — Having in your possession a child pornography image that came through interstate commerce is a federal crime. Having a date file on your computer of a child pornography image downloaded off the Internet is sufficient for a violation.
Sentences are harsher for aggravated offenses, where the images are violent, sadistic or masochistic, a minor is sexually exploited or the alleged offender has a prior conviction.
Because Internet child pornography is such a heinous crime, state and federal prosecutors may be overzealous in pursuing criminal charges when it’s not appropriate. Images do not have to be overtly sexual to cross the threshold for child pornography. For example, parents who take pictures of their children bathing have been caught up in overzealous prosecutions. The law also doesn’t take into consideration the age of the offender; teenagers caught up in the sexting craze, who send nude images of themselves electronically to other teens, have technically violated child pornography laws. At The David Jay Glassman Law Offices, we assert your rights as we present the facts in the best possible light. The problem of "Reception" of child Pornography is now in test of The Net Neutrality of allowing immunity to Providers of Internet's largest financial services going untaxed. Again does not allow entrapment as stated by The United States Supreme Court of " The government must prove beyond a reasonable doubt that a defendant was predisposed to commit a crime prior to any contact with government agents in order to overcome entrapment defense; defendant's prior commission of acts later prohibited that were legal at the time did not establish evidence of predisposition sufficient to overcome entrapment defense where no evidence existed of commission of crimes independent of solicitation to do so by agents."
Jacobson v. United States, 503 U.S. 540(1992), is a case decided by the United States Supreme Court regarding the criminal procedure topic of entrapment. A narrowly divided court overturned the conviction of a Nebraska man for receiving child pornography through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.
It was the first time the court had considered an entrapment case from outside the realm of controlled-substance enforcement, or one involving conduct that had only recently been criminalized. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court appeared to have finally resolved a lingering issue in its previous decisions on the subject.
The decision was seen as a rare triumph for defendants before a conservative court that frequently sided with prosecutors. Guidelines for federal law enforcement agents were changed in its wake, and it was described as having brought entrapment "back from the dead."