Not all charges related to child pornography are prosecuted at the federal level. A handful of these cases remain in state court where they are prosecuted locally. When media of a sexual nature involving a child is discovered, the charges for that material come in three degrees: First, Second, and Third Degree Sexual Exploitation of a Minor. This article will teach you the differences between the three types of charges and discuss each in detail.
Third-Degree Sexual Exploitation of a Minor
Third Degree Sexual Exploitation of a Minor is the least serious and most common charge involving child pornography. According to N.C.G.S. § 14-190.17A, Third Degree Sexual Exploitation of a Minor occurs when a person:
- knowing the character or content of the material
- possesses material that contains a visual representation of a minor engaging in sexual activity
This means that someone who possesses the material must do so knowingly, that is it cannot be just “planted” by law enforcement or someone else. Also the material must contain a minor engaging in “sexual activity,” which is interpreted broadly under the law. Sexual activity would be any activity designed to arouse the viewer and involving any intimate act. It need not involve child nudity, especially if the clothed child is engaging in sexual activity with an adult.
The statute also contains two provisions designed to limit potential defenses:
- a jury may infer that a participant in sexual activity whom material through its title, text, visual representations or otherwise represents or depicts as a minor is in fact a minor
- mistake of age is not a defense to a prosecution under this section
The first provision is to prevent claiming that material depicts adults who look or appear like children to avoid prosecution. The second provision is to prevent claiming that the person depicted in the material misrepresented their age. If someone in that material is under the age of 16 they are a child by law, regardless of what the person possessing the material believes about their age.
Third Degree Sexual Exploitation of a Minor is punished as a Class H felony, which means that anyone convicted of this offense can go to prison. But probation is a likely option for most offenders. Serious complications come from a conviction for this activity, including:
- that anyone who pleads guilty will be a convicted felon
- this charge cannot be expunged so that conviction will be lifetime
- this charge requires automatic registration as a sex offender for 30 years, which comes with major life consequences
Second-Degree Sexual Exploitation of a Minor
Second Degree Sexual Exploitation of a Minor is defined by N.C.G.S. §14-190.17. A person commits the offense of second degree sexual exploitation of a minor if:
- knowing the character or content of the material, he:
- Records, photographs, films, develops, or duplicates material that contains a visual representation of a minor engaged in sexual activity; or
- Distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity
Second Degree is more serious than Third Degree in that it punishes more than simple possession of child pornography. If someone records or films such activity or instead sells or distributes it, they could be prosecuted under this section. The law is written broadly so that many activities can be understood to constitute Second Degree Sexual Exploitation of a Minor. Like the earlier law for Third Degree, Second Degree includes the same provisions regarding mistake of age and representation of minors.
Second Degree Sexual Exploitation of a Minor is punishable as a Class E felony. This is a higher-level felony. Unless the accused has minimal record to no record they will be sentenced to prison time, which can range to over 2 years. Someone with no record could still be eligible for probation. After a conviction for this offense, a person would have to register as a sex offender for a thirty year period.
First-Degree Sexual Exploitation of a Minor
First Degree Sexual Exploitation of a Minor is the most serious form of these charges. It is described in N.C.G.S. §14-190.16. A person commits the offense of First Degree Sexual Exploitation of a Minor if:
- knowing the character or content of the material or performance, he:
- Uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
- Permits a minor under his custody or control to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
- Transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
- Records, photographs, films, develops, or duplicates for sale or pecuniary gain material that contains a visual representation depicting a minor engaged in sexual activity.
This degree involves extreme cases, including production of material, live performances including material, material involving a minor in the custody of the accused, trafficking a minor to create this material, or selling this material to others. It also contains the same prongs regarding mistake of age and representation of minors. If a minor were engaged in some form of sexual activity at a strip club or public venue and someone were to film that activity, it could be punished under this statute.
Someone convicted of First Degree Sexual Exploitation of a Minor is looking at a Class C felony, one of the highest level offenses under North Carolina law. Anyone convicted of this crime must go to prison with only a small handful of exceptions. Even a first time offender will likely serve around 5 years of prison time or more if they are convicted of this charge. After their release, they will also need to register as a sex offender for a period of 30 years. Therefore it is of the utmost importance that the accused seek out competent legal representation immediately.
Defending Against Sexual Exploitation of a Minor
Defending against charges of Sexual Exploitation of a Minor can depend on several factors:
- Did the accused possess the material?
- Did the accused know the character of the material?
- Did the accused access the material?
- Was the material traced to the accused’s IP address?
- Did the accused or other people in the home have access to the material?
- Did the accused make any admissions to the police?
- Does the material really depict children?
- Is the material accessible to law enforcement?
Often, early in an investigation, the police will reach out to people based on tips they have received from various federal agencies such as Homeland Security or the Center for Missing and Exploited Children. Law enforcement will likely already have access to the files in question and have reviewed them to determine if they are material that involves minors engaging in sexual activity. Armed with this knowledge, they will use computer forensics provided to them to narrow down the possible owner of these files and contact them. Once they contact a suspect, they will call back repeatedly until they can get an answer that they like… One that will result in that person going to jail. It is absolutely essential in these cases that someone who is contacted by an officer make no statement whatsoever without a lawyer. There is no way to undo a costly admission about possessing child pornography. Without a way to attack possession, the entire case is predicated on whether the material depicts children. That is often easy for the state to prove.
In these cases, the material will be kept by law enforcement so that child pornography will not be disseminated any further. That makes them unique since normally during prosecution, the accused person is allowed to have access to copies of their evidence through the discovery process. However, the material involved in these charges is only available to be viewed by scheduling a visit with law enforcement. That can make reviewing the material used for prosecution very burdensome.
Since these cases involve children and the transfer of material, they can also go federal quite quickly. The state court usually sentences people much more fairly than federal court. So keeping the case in state court is a priority. Federal sentences are extraordinarily long, almost 4 times the length of state sentences on average.
If you or someone you love has been arrested for Sexual Exploitation of a Minor, you will need serious help. You will need someone to gather your options, to fight for the best possible outcome, to give you perspective during difficult times. The attorneys at Jetton and Meredith have decades of experience and we have successfully fought Sexual Exploitation of a Minor charges before. Call us at (704) 931-5535 and schedule your consultation today!