How Federal and State Laws Treat Child Pornography

In the 1964 U.S. Supreme Court case Jacobellis v. Ohio, Justice Potter Stewart infamously failed to articulate or describe hard-core pornography in his concurring opinion. Justice Stewart did state, however: "I know it when I see it."

Times have changed since that famous line was written nearly 50 year ago, and federal and state laws now articulate what hard-core pornography is, especially when the images depict a minor. For those accused of creating, possessing or distributing child pornography, it is not that criminal laws now define these actions in detail, it's that harsh penalties are attached to these definitions and that many prosecutors, rightly and sometimes wrongly, use to zealously pursue and prosecute people believed to violate these laws.

Both the definition and the penalties for child pornography charges differ between the state and federal governments.

Federal Law: Child Pornography

Child pornography is defined by federal law as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture ... of sexually explicit conduct" involving a person under the age of 18. Sexually explicit conduct is defined as "actual or simulated" sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area which means to be illegal, the image does not need to involve a sexual act.

Along with creating and possessing child pornography, it is a violation of federal law to distribute these images. However, to become a federal offense, distribution needs to affect interstate or foreign commerce; but, what actions affect commerce are broadly defined by federal authorities. The U.S. Justice Department provides a few examples of what is considered to affect interstate and foreign commerce, including:

  • Using common carriers such as the Postal service to send child pornography across state or international boundaries
  • Using the Internet to send or receive child pornography, even if the images are not actually sent across a state or international boundary
  • Using a computer or other device that traveled across a state or international boundary (i.e. was manufactured in one state and shipped to another state) to view, download or send child pornography

A conviction under federal law for distributing child pornography carries a prison term of not less than 5 years but no more than 20 years. Just possessing child pornography subjects a person to a prison term of up to 10 years. Judges will use the factors in the federal sentencing guidelines, along with the facts of the case to determine the actual length of the prison term.

If a person has prior convictions for these charges, the penalties face double in length.

Maryland Law: Child Pornography

The distribution of child pornography law in Maryland is very similar to the federal law. Maryland law states that it is illegal to "knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute [an image] ... that depicts a minor engaged in ... sexual conduct ... [or] in a manner that reflects the belief, or that is intended to cause another to believe, that the [image] depicts a minor engaged [in] ... sexual conduct."

A person convicted of a first offense of distributing child pornography in state court faces up to 10 years in prison; for each additional offense, a person faces up to 20 years in prison.

The penalty for possessing child pornography in Maryland is a prison term of up to 5 years; for additional offenses, the penalty is up to 10 years in prison.

Differences Between Federal and State Law

One of the main differences between the Maryland and federal laws is that the federal law does not consider the state's age of consent. In Maryland, for a person to be convicted of possessing child pornography, the image needs to depict a minor under the age or 16; whereas, federal law uses the age of 18. Therefore, a person could face federal possession of child pornography charges, even if the images would not be illegal to possess in Maryland.

However, Maryland law tracks more closely with federal law for distribution of child pornography charges; both consider it illegal to distribute pornographic images of "minors," people under the age of 18.

Additionally, the penalties faced for possession and distribution of child pornography differ between state and federal law; with the federal penalties being much harsher. So it does matter whether a person is charged under state or federal law.

"Knowing it when you see it" isn't always as easy as Justice Stewart may have thought when it comes to child pornography, especially for possession/viewing of child pornography. Often there are legitimate reasons for clicking onto a website containing child pornography, such as a mistaken click of the mouse or honestly believing you were viewing an image of a person of legal age.

Being charged with possession and/or distribution of child pornography is very serious, both in the state of Maryland and federally. Defending your legal rights and mounting a strong defense is imperative when accused of these crimes. As soon as you learn that you are being investigated for or charged with one of these crimes you will want to hire an aggressive and experienced child pornography defense attorney with a strong record as a zealous advocate for clients.