Under Texas and federal law, a person cannot receive, access, possess, or distribute child pornography. Of course, this begs questions such as: What exactly is child pornography. Does it cover only images? Does it cover material not involving sexual intercourse? Does it cover artistic photos?
Continue reading below to learn the federal and State definitions of child pornography.
Federal Definition of Child Pornography
Federal law defines child pornography as:
...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.
A minor is someone under 18 years old.
Texas Definition of Child Pornography
In addition to federal law, each state defines child pornography differently.
Texas law defines child pornography as “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.
"Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
In addition, the law requires that a person know the images depict a child. It is sometimes difficult, particularly when a child is 14 to 17 years old and is fully developed, to determine if that child is a minor. The prosecution must prove a person knew the pornography actually depicted a child.
What does NOT constitute child pornography?
Not everything that involves nude minors falls under the definition of child pornography. For example, the definition does not include naked photos of a minor that does not involve either sexual conduct or lewd exhibition. These could include artistic photos, family photos, paintings or graphical representations.
Jock Sturges and Sally Mann are just two examples of accomplished photographers who use nude minors as their subject matter. The photography books of Sturges and Mann are available for sale online. Neither of them have ever been charged with producing child pornography, and of course their work would not fall under the definition of “child pornography.”
Lucien Freud is a famous painter from England. One of his most famous paintings was a nude painting of his 16-year-old daughter. This painting has been exhibited in museums and is art, not considered child pornography.
Non-visual depictions, such as stories or erotica, also do not fall under the definition of child pornography.
What about sexting?
Sexting occurs when one person sends, receives or forwards sexually explicit messages, photographs or images, primarily between mobile phones. For example, a child who sexts lascivious photos of himself or herself to an adult.
Sexting in such a case can constitute child pornography, even if the child agrees to send the images.
Contradiction in Child Pornography Law
The current definitions of child pornography can lead to some absurd scenarios and consequences. For example, according to the sex assault statute in Texas, a child is defined as someone under 17 years old. That means it’s not a crime for a 30-year-old male and a 17-year-old female to have sex.
However, if that 17-year-old is sexting pornographic images of herself to the 30-year-old male, then the 30-year-old male can be charged with receiving child pornography under federal law.
Building a Defense for Child Pornography
The reality is that prosecutors almost never file charges for child pornography unless there are at least a few images of a minor who is clearly involved in sexual conduct. In almost all child pornography cases, there are at least several pornographic items.
The problem, though, is that prosecutors are eager to count images that are not child pornography, or are in the gray area, as clearly child pornography. That’s why it’s important to have a criminal defense lawyer who thoroughly reviews all the images to determine whether they actually qualify as “child pornography.”
At the Neal Davis Law Firm, we have successfully handled numerous federal and state child pornography cases, and we are experts in these complex types of cases. If you or a loved one has been charged, contact us online or call us immediately at 713-227-4444 for a free consultation.