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One of the most frequently invoked rights of U.S. citizens is the First Amendment right to free speech and freedom of the press. The federal government has ruled, however, that obscenity and pornographic material involving children is not protected speech. In fact, possession, distribution, production, and trafficking of child pornography are not just violation of Oklahoma state laws, they are against the federal laws contained in the United States Criminal Code as well.
If you have been accused of any crime related to child pornography, you face significant legal penalties. In Oklahoma, possession of child pornography is a felony punishable by a maximum of 20 years in prison and a fine of up to $25,000. Depending on specific factors involved in the possession, penalties may be enhanced. For example, if a defendant has downloaded child pornography on a computer, he or she will also likely be charged with violating the Oklahoma Computer Crimes Act. This Act criminalizes the use of a computer to break any Oklahoma state law. Felony conviction subject to the Oklahoma Computer Crimes Act is punishable by a maximum of ten years in prison and a fine of up to $100,000. These penalties are in addition to any legal consequences of the underlying crime of possession of child pornography.
Additionally, anyone convicted of possessing child pornography is labeled a Level 1 Sex Offender and required to register as a sex offender for 15 years upon the first offense. Registered sex offenders face significant restrictions on residential, recreational, and employment opportunities, and the public has easy access to their personal information and sex offender status on the Oklahoma Sex Offender Registry.
Clearly, the consequences of conviction are great. Finding a skillful attorney is critical to a successful outcome to any case. Whether aggressively pursuing a dismissal of charges or an acquittal at trial for an innocent person, or diligently preserving the constitutional rights of a defendant who violated the law, the attorneys with Phillips & Associates are committed to providing superior legal representation for each and every client. Our record of successful sex crimes defense is marked by numerous dismissals and acquittals for our clients who are able to walk free without the stigma associated with being a registered Oklahoma sex offender.
The U.S. Criminal Code defines child pornography as follows:
(8) "[C]hild pornography" means any 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—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) 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
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. (18 USC § 2256)
In other words, child pornography may include an actual image of a minor engaging in sexually explicit conduct as well as images that only appear as if a minor is engaging in sexually explicit conduct. Federal law defines a minor as anyone under the age of 18. According to both state and federal law, sexually explicit images of anyone under the age of 18 is child pornography. This is important to note, because in Oklahoma, the legal age of consent is 16. This means that a person who can legally consent to engage in sexual activity may not be able to provide legal consent to create images of that activity. This discrepancy between laws defining second degree rape and those defining child pornography create a loophole where many individuals find themselves charged with possession or distribution of child pornography as a result of sexting.
As a federal sex crime, the possession, distribution, or production of child pornography is penalized depending on certain variables of the offense:
If possession or distribution of child pornography takes place within the borders of Oklahoma, it is generally prosecuted as a state crime. However, crimes which occur on Indian land often fall under federal jurisdiction, and crimes which are perpetrated across state lines, as is often the case in online distribution of child pornography are typically prosecuted in the United States District Courts.
Anyone charged with a crime related to child pornography needs to understand the charges he or she faces and whether that crime will be prosecuted by an Oklahoma district attorney or a U.S. District attorney. If the crime is charged as a federal offense, it is imperative to get representation from a federal criminal lawyer admitted to practice in the U.S. District Courts for the Eastern, Western, and Northern Districts of Oklahoma.
Find out more about the development of federal child pornography laws here.
Recently a number of arrests have resulted from online sting operations conducted by the Oklahoma Internet Crimes Against Children (ICAC) Task Force, an agency of the National ICAC Task Force. The National ICAC Task Force was developed under the Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act (PROTECT Act) of 2008. It is designed to help state and local law enforcement agencies investigate and prosecute internet sex crimes including child pornography and soliciting minors online.
The Oklahoma ICAC Task Force is one of 61 task forces including more than 2,000 state and federal agencies. Led by the Oklahoma State Bureau of Investigation (OSBI) the state Internet Crimes Against Children Task Force is comprised of county sheriff's offices, municipal police departments, and district attorney's offices. ICAC investigations often include a task force agent, typically a police officer, posing as a decoy online either as a minor or as an adult soliciting child pornography. When a computer user solicits sex from the "minor" or distributes child pornography to the decoy, task force agents gather evidence to arrest the individual.
Sting operations must be conducted carefully to avoid entrapment, a condition in which law enforcement coerces a person to perform criminal acts or behave in ways he or she would not have done without the coercion of the investigators.
If you have been charged with possession, distribution (such as sexting child pornography), or production of child pornography, you may feel like your back is against the wall. However, you do have options for a successful defense. For a free, confidential review of your case, contact Phillips & Associates to speak with an experienced attorney. Submit our online case review form or call now to see how we can help.