Home Practice Areas Sex Crimes Child Pornography What are the Penalties for Child Pornography?

What are the Penalties for Child Pornography?

Penalties for child pornography offenses are shockingly high: in federal cases, prison time is the norm, even in cases of mere possession. In state courts in New York City, mere possessors are occasionally given probation, but imprisonment is common. Federal cases involving receipt or distribution of child pornography—for example, emailing a single image to an undercover agent—carry a mandatory minimum five-year sentence in federal prison. Federal maximum sentences for child pornography range from twenty years to life imprisonment. In New York, lifelong sex offender registration almost always follows a conviction for possession of child porn.

If you are accused of possessing, distributing or producing child pornography, no one can tell you from the outset whether you will go to prison, or for how long. You should immediately consult with an attorney experienced in defending child pornography cases. That said, below are the sentences for some commonly charged child pornography offenses that apply as of late 2020.

Sentences change often and it is essential to consult a lawyer for the latest, most applicable information.

Federal Child Pornography Sentences. The punishment for the lowest-level child pornography crime in federal court, possessing or "accessing with intent to view" child pornography under 18 U.S.C. Sec. 2252(a)(4), is a felony capped at ten years, unless the material depicts a prepubescent minor or a person under twelve years old, in which case the maximum sentence is twenty years. Note that to be convicted, the defendant must "knowingly" possess or access the material, which has been interpreted to mean that he or she must know that the material depicts a child under 18, or who is prepubescent, or who is under 12.

In these federal cases, however, if the defendant has a prior conviction for a sex crime (including child pornography or a state sex offense), the minimum penalty is ten years in prison and the twenty year cap applies regardless of the age of the child depicted.

Even though no minimum applies to simple possession, the U.S. Sentencing Guidelines for child pornography, which are set out at Section 2G2.2 of the Sentencing Guidelines Manual, are very high, usually recommending a sentence near the ten-year maximum. While the Sentencing Guidelines are not binding on judges, they must be calculated and tend to pull child pornography sentences higher than they would otherwise be. A federal child pornography lawyer can help you determine the applicable Guideline range, which you should do before considering any plea offer.

Almost any case of possession, however, can also be charged as "receipt," which carries the same penalty as distribution under 18 U.S.C. Sec. 2252(b)(1): five to forty years. If a defendant pleads guilty or is convicted of receipt or distribution of child pornography, the judge is required to sentence him to at least five years in prison.

You should not plead guilty to a child pornography charge unless you understand exactly how the mandatory minimum and Sentencing Guidelines apply.

Under federal law, production of child pornography is charged as "sexual exploitation of a child" and carries a fifteen-year mandatory minimum sentence under 18 U.S.C. Sec. 2251. This statute applies to a person who takes a single sexually explicit photograph of any child under 18 years old, even if he does not know the child's age.

New York State Child Pornography Penalties. Under New York State law, child pornography is called "sexual performance by a child" and can be charged as possession under Penal Law Sec. 263.11.

Possession of a sexual performance by a child is an E felony, punishable by a maximum sentence of up to four years' imprisonment.  No mandatory minimum applies, but felony probation under this provision is ten years.

Figuring out the actual prison time to be served under New York law is complicated because, under this type of sentence, release on parole may be available shortly before a person completes one-third of the maximum sentence imposed.

Promotion, distribution, or receipt of a sexual performance by a child is a D felony, which carries a maximum penalty of seven years in prison.

Under New York state law, these prison terms may be substantially higher if the defendant has a prior criminal record, which can also trigger mandatory minimum penalties in some circumstances.

Collateral Consequences. In addition to possible prison time, all child pornography convictions carry monetary penalties and automatically trigger sex offender registration.

A child pornography conviction makes it impossible to get many jobs.

During parole or probation, there may be limits on where you can live, whom you can live with, and how you can use electronic devices. You may be subject to mandatory therapy and polygraph testing.

In certain cases, a child pornography conviction can put you at risk for civil commitment, i.e. involuntary, long-term commitment to a secure mental hospital.

There are many more collateral consequences to a child pornography conviction which should be carefully researched and analyzed prior to deciding whether to accept a guilty plea or proceeding to trial.