It is common knowledge that child pornography is grossly illegal in nearly every jurisdiction. If you found yourself in the unfortunate position of being charged with creating, distributing and possessing child pornography in Michigan, you are likely wondering how bad the consequences can be. How long would you spend in jail or prison? Are there any defenses to these serious charges?
The Michigan Penal Code uses the terms “child sexually abusive activity” and “child sexually abusive material” to describe child pornography under its criminal statutes:
- “Child sexually abusive activity” means a child engaging in a listed sexual act. MCL 750.145c(1)(n). A “child” means a person who is less than 18 years of age, even though the age of consent in Michigan is 16 years of age. MCL 750.145c(1)(c). A “listed sexual act” means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity. MCL 750.145c(1)(i).
- “Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording. MCL 750.145c(1)(o).
For child sexually abusive material to “appear to include a child”, it means that the depiction appears to include, or conveys the impression that it includes, a person who is less than 18 years of age, and the depiction meets EITHER of the following conditions:
- “It was created using a depiction of any part of an actual person under the age of 18.” MCL 750.145c(1)(b)(i).
- “It was not created using a depiction of any part of an actual person under the age of 18, but all of the following apply to that depiction:”
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- “The average individual, applying contemporary community standards, would find the depiction, taken as a whole, appeals to the prurient interest.” MCL 750.145c(1)(b)(ii)(A).
- “The reasonable person would find the depiction, taken as a whole, lacks serious literary, artistic, political, or scientific value.” MCL 750.145c(1)(b)(ii)(B).
- “The depiction depicts or describes a listed sexual act in a patently offensive way.” MCL 750.145c(1)(b)(ii)(C).
POSSESSION OF CHILD SEXUALLY ABUSIVE MATERIAL
“A person who knowingly possesses or knowingly seeks and accesses any child sexually abusive material if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child” is guilty of a felony punishable by a fine up to $10,000.00 or up to 4 years in state prison, or both. MCL 750.145c(4)(a).
However, “[i]f the child sexually abusive activity or child sexually abusive material involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material”, then the person is guilty of a felony punishable by a fine up to $50,000.00 or up to 10 years in state prison, or both. MCL 750.145c(3)(b).
A person convicted of possessing child sexually abusive material will be required to register as a Tier I Offender on Michigan’s Sex Offender Registry. TIER I OFFENDERS are listed on a non-public registry, must register FOR 15 YEARS, and must report to law enforcement ONCE PER YEAR to verify their address. If that person is already a Tier I Offender on the registry and is convicted of this offense, then that person will be listed as a Tier II Offender. TIER II OFFENDERS are listed on a public registry, must register FOR 25 YEARS, and must report to law enforcement TWO TIMES PER YEAR to verify their address. If that person is already a Tier II Offender on the registry and is convicted of this offense, then that person will be listed as a Tier III Offender. TIER III OFFENDERS are listed on a public registry, must register FOR LIFE and must report to law enforcement FOUR TIMES PER YEAR to verify their address.
The crime of possession of child sexually abusive material does not apply to any of the following people:
- A police officer acting within the scope of his or her duties as a police officer. MCL 750.145b(5)(b).
- An employee or contract agent of the department of health and human services acting within the scope of his or her duties as an employee or contract agent. MCL 750.145b(5)(c).
- A judicial officer or judicial employee acting within the scope of his or her duties as a judicial officer or judicial employee. MCL 750.145b(5)(d).
- A party or witness in a criminal or civil proceeding acting within the scope of that criminal or civil proceeding. MCL 750.145b(5)(e).
- A physician, psychologist, limited license psychologist, professional counselor, or registered nurse acting within the scope of practice for which he or she is licensed. MCL 750.145b(5)(f).
- A social worker acting within the scope of practice for which he or she is registered. MCL 750.145b(5)(g).
DISTRIBUTING, PROMOTING OR FINANCING THE DISTRIBUTION OF CHILD SEXUALLY ABUSIVE ACTIVITY AND MATERIAL
“[A] person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child” is guilty of a felony punishable by a fine up to $50,000.00 or up to 7 years in state prison, or both. MCL 750.145c(3)(a).
However, “[i]f the child sexually abusive activity or child sexually abusive material involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material”, then the person is guilty of a felony punishable by a fine up to $75,000.00 or up to 15 years in state prison, or both. MCL 750.145c(3)(b).
A person convicted of distributing, promoting or financing the distribution of child sexually abusive activity or material will be required to register as a Tier II Offender on Michigan’s Sex Offender Registry. TIER II OFFENDERS are listed on a public registry, must register FOR 25 YEARS, and must report to law enforcement TWO TIMES PER YEAR to verify their address. If that person is already a Tier II Offender on the registry and is convicted of this offense, then that person will be listed as a Tier III Offender. TIER III OFFENDERS are listed on a public registry, must register FOR LIFE and must report to law enforcement FOUR TIMES PER YEAR to verify their address.
PRODUCING CHILD SEXUALLY ABUSIVE ACTIVITY AND MATERIAL
“A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child” is guilty of a felony punishable by a fine up to $100,000.00 or up to 20 years in state prison, or both. MCL 750.145c(2)(a).
However, “[i]f the child sexually abusive activity or child sexually abusive material involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material”, then the person is guilty of a felony punishable by a fine up to $125,000.00 or up to 25 years in state prison, or both. MCL 750.145c(2)(b).
A person convicted of producing child sexually abusive activity or material will be required to register as a Tier II Offender on Michigan’s Sex Offender Registry. TIER II OFFENDERS are listed on a public registry, must register FOR 25 YEARS, and must report to law enforcement TWO TIMES PER YEAR to verify their address. If that person is already a Tier II Offender on the registry and is convicted of this offense, then that person will be listed as a Tier III Offender. TIER III OFFENDERS are listed on a public registry, must register FOR LIFE and must report to law enforcement FOUR TIMES PER YEAR to verify their address.
SECOND OR SUBSEQUENT OFFENSE FOR CHILD SEXUALLY ABUSIVE ACTIVITY OR MATERIAL
If a person is convicted of a second or subsequent offense of creating, distributing or possessing child sexually abusive activity or material, then the sentence imposed for a second or subsequent offense is a mandatory minimum sentence of NOT LESS THAN FIVE YEARS IN STATE PRISON. MCL 750.145g. This mandatory minimum applies if the prior conviction involves any other sexual offense against a minor.
DEFENSES TO CHARGES OF CREATING, DISTRIBUTING OR POSSESSING CHILD SEXUALLY ABUSIVE ACTIVITY OR MATERIAL
It is extremely difficult to defend against charges of child pornography in Michigan, but there are some valid defenses available under the law that include, but are not limited to, the following:
- CHILD WAS EMANCIPATED FROM PARENTAL CONTROL: It is an affirmative defense to a prosecution for child sexually abusive activity or material that the alleged child is a person who is emancipated by operation of law. MCL 750.145c(7). This means that the child was freed from parental custody due to marriage, military service or from a court of competent jurisdiction declaring that the child is emancipated from his or her legal guardians. The child then gains the legal rights of an adult including the ability to enter into contracts and, for the purposes of this law, participating in sexual activity. The defendant has to prove emancipation by a preponderance of the evidence.
- PERSON DEPICTED THAT APPEARS AS A CHILD WAS NOT ACTUALLY A CHILD: If a defendant in a prosecution proposes to offer in his or her defense evidence to establish that a depiction that appears to include a child was not, in fact, created using a depiction of any part of an actual person under the age of 18, the defendant shall at the time of the arraignment on the information or within 15 days after arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney of record a notice in writing of his or her intention to offer that defense. MCL 750.145c(8). The notice must contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called on behalf of the defendant to establish that defense. Id. The defendant’s notice must include specific information as to the facts that establish that the depiction was not, in fact, created using a depiction of any part of an actual person under the age of 18. Id. Failure to file a timely notice precludes a defendant from offering this defense.
In addition, a defendant can still claim that the child sexually abusive material belonged to someone else or that he or she did not knowingly possess it. In all situations, the prosecutor has the burden of proving beyond a reasonable doubt that the defendant knowingly and intentionally acted in or possessed materials in a manner inconsistent with law. In other words, you can’t merely come into the materials by accident, but judges and juries can rely on circumstantial evidence that the defendant knew what he or she was doing based on the total circumstances.
TEENAGE “SEXTING” CAN LEAD TO CHILD PORNOGRAPHY CHARGES
Michigan’s child pornography laws were created before the rise of smartphones and instant messenger services. The Michigan Legislature did not anticipate that teenagers can secretly and covertly send sexual images to one another with relative ease (e.g. a 16-year old girlfriend sends an image of her breasts to her 17-year old boyfriend). While these child pornography laws were intended to penalize adults who create, distribute or possess this child sexual abusive material, there are prosecutors who are applying these rules to prosecute teenagers for sexting. Again, a 16-year old can consent to sexual activity under Michigan law but a sexual image of someone not yet 18 years old fully or partially nude that intended to be erotic is illegal to create or possess.
So, that 17-year old boyfriend who receives an image of his 16-year old girlfriend’s and keeps it on his phone can be charged with possession of child sexually abusive material. That same boyfriend who shares that image with his friends can be charged with distributing child sexually abusive material. Finally, the 16-year old girlfriend that took the image can be charged with creating child sexually abusive material. These can lead to serious consequences in the juvenile justice system or the adult criminal penal system if convicted.
Even juveniles who commit these act can face fines, probation, imprisonment and a lengthy registration period on Michigan’s Sex Offender Registry. Teenagers who share explicit images of themselves should take care of the possible consequences of their actions.
OTHER CRIMES RELATED TO CHILD PORNOGRAPHY
The Michigan Penal Code criminalizes the use of a computer in the commission of a crime. The statute defines a “computer” as “any connected, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network. MCL 750.145(d)(9). This includes smart phones and tablets. Using a computer to commit a crime can result in a felony conviction punishable between 1 and 20 years in prison.
In addition, child pornography is punishable under federal law when it affects interstate and foreign commerce and can result in longer prison sentences that can be handed out in state court.
Under federal law, any person who knowingly transports or ships, receives or distributes, or sells or possesses with intent to sell any visual depiction involving the use of a minor engaging in sexually explicit conduct using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mail is guilty of a felony punishable between 5 to 20 years in federal prison (15 to 40 years in prison if the person has a prior conviction involving child pornography in federal or state court). 18 U.S.C. §2252(b)(1).
Also under federal law, any person who knowingly possesses or knowingly accesses with intent to view any visual depiction involving the use of a minor engaging in sexually explicit conduct that was mailed, shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or knowingly possesses or knowingly accesses with intent to view on any land or building leased or owned by the U.S. government is guilty of a felony punishable by up to 10 years in federal prison (up to 20 years in federal prison if the minor depicted is under 12 years old and between 10 to 20 years in federal prison if the person has a prior conviction involving child pornography in federal or state court). 18 U.S.C. §2252(b)(2).
CHILD PORNOGRAPHY CHARGES ARE SERIOUS OFFENSES THAT REQUIRE THE BEST DEFENSE
Any person charged with child pornography charges can expect the prosecutor to pursue the case aggressively, so this should be met with a strong defense by a skilled criminal lawyer in your corner. You can’t settle for anything less than the best legal representation in your corner to protect your freedom and your rights. If you or a loved one is charged with any criminal offense, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
