When we talk about the distribution of child pornography, it’s important that we understand the entire scope of the law and what distribution actually entails. 

Possessing, distributing, transmitting and manufacturing child pornography are all illegal in the State of Florida and are third degree felonies covered under Florida Statutes 847.0135, 847.0138 and 827.071. Additionally, the possession, distribution, transmission and manufacturing of child pornography are also federal offenses. 

But what is child pornography itself? You may be wondering if child pornography is simply photos of a child without clothes on, and it’s important to know that it goes deeper than that. 

Under both state and federal law, any visual portrayals of sexually explicit behavior involving a minor are considered child pornography. This includes drawings or animations of minors in a sexually explicit nature. Children photographed either nude or partially nude in a manner that doesn’t fit the definition of “sexual conduct” is not illegal. This type of content is referred to as “child erotica” and while it is certainly a moral gray area it’s not necessarily illegal.  

It’s important to note that a child is defined as any person under 18 years of age. So, if you have a teen who has sent you a sexually explicit photo of themselves, you are technically in possession of child pornography. 

You might think you would never be guilty of distribution of child pornography, but consider the following scenario. Let’s imagine that you are 18 years old and are dating a 17 year old who sends a nude photo of themselves. You forward or screenshot the photo and send it to a friend. You’re now guilty of distributing child pornography. You may not see it this way, but in the eyes of the law you have committed a very serious crime. 

For another scenario, consider a similar instance where a teenage girlfriend shares explicit photos of herself, and you sell those photos after you break up. Even if you are a minor or are protected under Romeo and Juliet laws against statutory rape, you can still be facing allegations of distribution of child pornography. 

A final scenario might be that you have drawn sexually explicit artwork of a child engaging in sex acts. If you give away or sell this artwork, you may be charged with distribution of child pornography.

To start, let’s cover what type of crime child pornography is and what that term actually means. 

Child pornography is both a federal and statutory offense, and each carries an equally serious punishment. Under federal law, any visual portrayals of sexually explicit behavior involving a minor are considered child pornography. This includes drawings or animations of minors in a sexually-explicit nature. For example, any hand-drawn images of minors engaging in a sexual act is illegal, even if the image was not based on an actual person. 

The Florida Department of Law Enforcement defines child pornography as “any image depicting a minor engaged in sexual conduct,” including photographs, videos, and computer files, among other forms of content involving a person under the age of 18 engaged in any form of sexual conduct. 

Let’s dig into that a little bit deeper and look at what the state means by “sexual conduct”. After all, does a naked photo of your child in the bathtub mean you accidentally have child pornography on your camera?

Florida Statute 827.071 defines sexual conduct as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.” 

Children photographed either nude or partially nude in a manner that doesn’t fit the definition of “sexual conduct” is not illegal. This type of content is referred to as “child erotica.” 

It is important to note that having only one photo on your computer that is deemed child pornography is a violation of the law. Also photos, images, or videos that have been deleted from your computer may be recovered and used against you in a criminal case. Possession, distribution, transmission or manufacturing child pornography is a serious felony offense in Florida and possibly in our Federal Court System. If you have been accused in State or Federal Court of a crime related to child pornography, don’t delay contact Anthony Rickman for a free consultation.

As a refresher, the statute of limitations, or SOL, is “a statute prescribing a period of limitation for the bringing of certain kinds of legal action.” In layman’s terms, the SOL is the maximum amount of time between when a crime occurred and when someone can formally come forward to file charges against another person. Some crimes, like murder, have no SOL and can be pursued decades later. 

The statute of limitations varies depending on the crime. These are not the same time limits as in civil cases, and even if the SOL for the crime has passed the victim may still have time to sue the perpetrator for damages. The following list includes statutes of limitations in Florida for sex crimes, as of March 2020: 

• Statutory Rape: 3 years
• Serious felony sex offense: 10 years or less (depending on the crime) 
• Sexual assault: 4 years (on average)

It’s important to note that if the sexual abuse resulted in the someone’s death, or if it occurred in such a circumstance that the abuser could face life imprisonment, the statute of limitation does not apply.

Imagine this scenario: a 17-year-old girl engages in a sexual act with a 25-year-old boyfriend. You might think this is covered under so-called “Romeo and Juliet” laws, but you’d be wrong because the 17-year-old cannot legally give consent, even if they verbally give it. 

In Florida, the age of consent for any sex act is 18. More specifically, if the person is legally below the age of consent (18 in Florida, but lower in some other states) he or she is not capable of giving permission to have any sexual contact with an adult. 

But, back to the “Romeo and Juliet” law. What if it’s a sex act between two minors or a minor and an adult who is just a few years older in age? After all, if a teen begins dating a senior during their freshman year of high school and they continue the relationship for a few years, does that mean the older of the two is guilty of statutory rape? 

The “Romeo and Juliet” law was created for scenarios like that one and removes the requirement of registry as a sex offender or sexual predator in certain situations, primarily when the victim and perpetrator are close in age. Furthermore, this applies when:  

• The victim is between the ages of 14 and 17 
• The victim was no more than four years younger than the offender
• The perpetrator is not older than 24 years old
• The victim must have been a willing participant in the sexual activity
• The offender does not have any previous sex crimes on their record

In short, a person over 25 should not have sex with anyone under 18 because they are not protected by the “Romeo and Juliet” law and the minor cannot legally give their consent.  

Before we can answer the question of whether or not statutory rape was committed, we must first take a look at the legal definiion of statutory rape. Florida Statute Chapter 794 defines statutory rape as: 

“Unlawful sexual activity with certain minors.—

(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.

(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.

(3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.

(4) If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.”

Statutory rape, also called lewd and lascivious battery, is defined by Florida Statute 800.04 which states that the crime of lewd and lascivious battery is committed when a person engages “in sexual activity with a person 12 years of age or older but less than 16 years of age” or “encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.” 

The statute of limitations (the time limit between when a crime is allegedly committed and when a case can be opened) on statutory rape in Florida is 3 years. However, this is not the case if the victim is younger than 12 at the time of the incident or if the incidents in question were connected to a family member or custodian. 

But when the person turns 18, does the possibility of charges disappear? The short answer is no. Even though they turned 18, they still will have at least 3 years to bring charges against you. That can be anxiety-inducing for young adults who engaged in sexual activity but ended their relationship poorly, which is why you need a federal criminal defense lawyer in St. Petersburg with The Rickman Law Firm.