Child pornography laws exist in every state of the union and at the federal level. These laws are never taken lightly, and both law enforcement and prosecutors are becoming more diligent in investigating and indicting those found with child porn.
The annual number of people prosecuted for sexual exploitation of children in federal court grew from 1,405 to 2,776 cases between the years 2004 and 2013.
As law enforcement continues to crack down on all types of sex crimes, more people are caught up in their nets. If you’re concerned about a pending case, keep reading to learn more about child pornography laws and what they mean for citizens of Texas.
What Is Penal Code 43.26: Possession or Promotion of Child Pornography?
Texas Penal Code 43.26 governs what is conventionally known as child pornography. But what does it mean?
An offense is committed when a person “knowingly or intentionally” holds or accesses visual materials of anyone under 18 years of age engaging in sexual conduct of any kind – willingly or not.
To understand what this law means, it’s essential to revert to a law preceding it: Penal Code 43.25 – Sexual Performance by a child.
The law defines sexual conduct as any sexual contact – whether it’s real or simulated – including deviate intercourse, sadomasochistic abuse, lewd exhibition, masturbation, or sexual bestiality.
It doesn’t matter what form the content is in: films, photos, videos, negatives, slides, or copies of any of the above count. Anything that’s designed to be transmitted via the internet or satellite is also illegal.
Simulation counts. Anything that makes it look like the minor is engaging in these activities – even if it’s photoshopped – counts.
Federal Laws May Apply
Child porn laws also exist at the federal level. Violating state laws may also lead to an indictment under federal law because any conspiracy to commit an offense is also a federal offense.
The laws are wrapped up under U.S. Code Title 18 Section 2256. Federal considers child porn to be “visual depictions” of sexual conduct involving a person under 18 years old. As with Texas law, the subject of the visual depictions doesn’t need to be engaging in physical activity: photos of naked children also count when the picture is deemed to be sexually suggestive.
Additionally, the age of consent in the state of Texas is 17, which blurs the lines for minors depicted in the images. Federal holds the age of a minor at 18, so even if someone is not indicted under state law, if the subject is 17 years old, then federal laws may apply.
Materials considered to be child pornography under the law are not protected by the U.S. Constitution. These items are contraband and aren’t part of free speech of expression.
Is Illegal Pornography a Felony in Texas?
Many child pornography charges are met with a felony under Texas law.
Third-Degree Felonies
Anyone who possesses or promotes the material described above may be charged with a third-degree felony.
Each count is charged with a third-degree felony, and the sentencing may extend up to ten years for each charge. Texas Penal Code allows for sentences to run consecutively. A person sentenced to six years for three counts of child pornography may serve up to 18 years in prison.
Second-Degree Felonies
The same crimes listed above become a second-degree felony if the accused has already been convicted of the offense.
First-Degree Felony
Two or more previous convictions turns child porn violations into a first-degree felony.
Is It a Felony Under Federal Law?
First-time offenders under Texas law may receive a sentence of two to 10 years of every count. Penalties for federal child pornography charges are far more strict.
Someone convicted of producing child pornography under federal law may receive a heavy as well as a minimum of 15 years in prison.
Those convicted of transporting child porn across the state or country lines receive a sentence of five to 20 years and a severe fine.
Previous convictions weigh heavily against you in sentencing as do charges related to child porn that is violent, masochistic, or sadistic, and in the case of abuse of a minor.
If convicted, life in prison may be awarded.
Is Sexting Considered Child Porn in Texas?
Texas’ child porn law is distinct from the state’s sexting laws.
Texas introduced sexting-specific laws back in 2011. The laws aren’t as strict as other child pornography laws: distributing messages of images of minors is a misdemeanor if the person sending the message is a minor (under 18 years old).
Minors convicted under the sexting laws don’t need to register as sex offenders.
If both parties are over age 18, then sexting is legal even when the material is sexually-explicit. However, as soon as one party is under 18, then the adult is a party not only to Texas laws but federal laws.
If one party is over 18 and the other is under 18, sexting can be defended. Even if one was a minor, it’s possible to defend sexting when the two individuals had been in a dating relationship and the age discrepancy isn’t more than two years.
A 19-year-old of argue that their sexting was lawful if the other part was 17. However, the defense fails if one party is 18 and the other is 14 regardless fo the dating relationship.
Is There a Defense for Child Pornography Cases?
If arrested for possession, production, or distribution of child pornography, never provide any statement to law enforcement until you have received the counsel of an attorney. Any comment may be used against you, and child pornography cases are challenging to fight.
There are some defenses for child pornography. The state wrote two arguments in the law for school administrators and law enforcement officers found to be in possession of child porn. It is a valid defense when that person was holding the materials as part of reporting someone else or creating a welfare check for a child.
Additional potential defenses include:
- Lack of intent
- Mistake of fact
- Entrapment
- Lack of knowledge
Those indicted under these laws need a lawyer to help prevent gross injustices in cases where the laws are unfairly applied.
Hiring a Sex Crimes Attorney
A person accused of violating child pornography laws isn’t always guilty. Even if they aren’t convicted in court, they often remain guilty in the court of public opinion.
If you’re under investigation or accused of violating Texas child pornography laws, you need a lawyer before you even have your day in court.
Request a Free Consultation from Sex Crimes Attorney Mario Madrid:
To learn more about the potential for a legal defense against child porn charges, call Houston Child Pornography Lawyer Mario Madrid for a free consultation, or fill out this contact form below:
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