Child Pornography and Endangering the Welfare of Children

In New Jersey, the definitions and penalties for child pornography fall under the New Jersey Revised Statues § 2C:24-4 (2014): Endangering the Welfare of Children.

An accusation of creating, distributing or possessing child pornography is a most serious charge, and the penalties range from first to third degree - up to 20 years in prison, a $200,000 fine, the possibility of life-long status on the Megan’s Law sex offender register and Parole Supervision for Life.

With the threat of Federal felony stalking charges always hovering and that’s not to mention social humiliation and ostracization, and a not particularly Welcome Wagon in prison.

Whether an adult or a minor, child pornography carries possible life-long consequences. If you or a loved one has been accused of creating, possessing, file-sharing or distributing child pornography, Monmouth County child pornography lawyer Tara Breslow-Testa is the person you should call first.

Under the New Jersey statutes for child endangerment and child pornography:

"Child" is any person 18 years of age or under.

"Distribute" means the sale, manufacturing, giving, providing, lending, trading, mailing, delivering, publishing, circulation, dissemination, presenting, exhibiting, displaying, sharing, advertising, offering or making available through the Internet or any other means - whether for financial gain or not. Distribute also means any attempt or agreement to distribute.

"File-sharing program" includes computer programs, software, application, operating system or software allowing a computer user on which any application, program, operating system or software is installed to make access to files available for copying to or searching by one or more than one computers, to transmit files directly to one or several computers, and to request transmission of such designated files directly from one or several computers. "File-sharing program" includes but isn’t limited to a computer program, software or application allowing computer users to communicate within a peer-to-peer network.

"Internet" is the international computer network of federal and non-federal interoperable packet-switched data networks.

"Item depicting the sexual exploitation or abuse of a child" means any film, video, photograph, electronic, digital or electromagnetic recording, images maintained or stored in a computer program or file/portion of a file, or any other reconstruction or reproduction which depicts a child engaging in a prohibited sexual act or the simulation of a prohibited sexual act.

"Peer-to-peer network" is a connection of computer systems which allows files to be shared directly between the systems on a network without need for a central server.

"Prohibited sexual act" includes

• (a) Sexual intercourse;
• (b) Anal intercourse;
• (c) Masturbation;
• (d) Bestiality (sex with animals);
• (e) Sadism;
• (f) Masochism;
• (g) Fellatio;
• (h) Cunnilingus;
• (i) Nudity, if the nudity is used to depict for the sexual gratification or stimulation or gratification of anyone viewing the depiction; or
• (j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.

"Reproduction" means, but isn’t limited to, computer generated images.

a. (1) A person who has legal duty or has assumed the responsibility for the care of a child then engages in any of the sexual conducts listed above, which would debauch or impair the child’s morals is guilty of a second-degree crime. Any other person who is not legally responsible for a child who causes harm described in this paragraph is guilty of a third degree crime.

(2) It is a second-degree crime for any person with a legal duty or who has assumed responsibility for the care of a child who harms the child in such a way to make the child abused or neglected as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21).

It is a third degree crime if any other non-legally or responsible person who engages in abusive or neglectful as detailed in this paragraph to a child.

b. (1) As used in this subsection:

(3) It is a first-degree crime is a person permits or causes a child to engage in or simulate the prohibited sexual acts listed above, if the person knows or has reason to know or intends that the prohibited sexual act may be reproduced, filmed, photographed or reconstructed in any manner - Internet included - or the prohibited sexual act may be part of a performance or exhibition.

(4) It is a second-degree crime if a person films or photographs a child in any of the prohibited sexual acts listed above, or if in the simulation of any of these acts, the person uses a device such as a computer, to reconstruct or reproduce the image of a child in any of the listed prohibited sexual acts - or the simulation of any of these acts.

(5) (a) It is a second-degree crime if a person by any means - including the Internet but not limited to the Internet:

1. (i) willfully distributes any item depicting the sexual exploitation or abuse of a child;
2. (ii) willfully possesses an item depicting the abuse or sexual exploitation of a child with intent to distribute the item; or
3. (iii) willfully maintains or stores an item depicting the abuse or sexual exploitation of a child using a file-sharing program designated as available for copying by or searching by one or more computers.

It is not a requirement of the state - in a prosecution under sub-subparagraph (iii) of this subparagraph - that the State offer proof that an item depicting the sexual exploitation or abuse of a child had actually been copied, searched, viewed or transmitted by another file-sharing program user, or any other person.

It is not a defense on the part of the accused that they didn’t intend to distribute the item to another file-sharing program user - or any other person.

The state is not required to prove the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers.

The defendant is strictly liable for not designating the item as not available for copying or searching by one or more other computers.

If a person whose offense under the subparagraph had 25 or more items showing the abuse or sexual exploitation of a child - notwithstanding the provisions of subsection a. of N.J.S.2C:43-6 - that person will be sentenced to a mandatory minimum term of imprisonment, fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater. The defendant will be ineligible for parole during this sentence.

Any person convicted of a second or subsequent offense under this subparagraph will be sentenced to an extended term of imprisonment detailed in N.J.S.2C:43-7. A second offense is defined by an actor at any time being convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.

“Possess” for the purpose of this subparagraph includes viewing, receiving or controlling by any means - including the Internet.

(b) It is a third degree crime if a person knowingly views, possesses or has under their control through any means - Internet included - any item depicting the sexual exploitation or abuse of a child.

If a person is involved with 100 or more items depicting the abuse or sexual exploitation of a child - with consideration for the provisions of subsection e. of N.J.S.2C:44-1 - a sentence of imprisonment will be imposed by the court - while the court will regard the conditions and character of the defendant and it is decided a serious injustice would occur if the actor is imprisoned - which overrides the need to deter the conduct.

(6) If a person depicted in the above detailed sexual offenses presents themselves as being under the age of 18 - a child - and that depiction is recorded and or shared by means of video, film, photograph, computer program or file, video game or any other reconstruction or reproduction, that person will rebuttably presumed to be under the age of 18.

It is not a defense if a person claims they did not know that a child under the age of 18, was under 18, if that child is depicted or is caused to be engaged in a prohibited sexual act or simulation of a prohibited sexual act.

It is also not a defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.

In New Jersey, a third-degree offense is punishable by no more than five years in New Jersey State Prison, a fine of up to $15,000, a felony criminal record and being added to sex offender lists.

Third degree offenses usually come with a presumption against incarceration - as long as it’s a first offense. However, child pornography offenses are serious and that presumption of no incarceration is often set aside by cautious judges.

In New Jersey, a second-degree offense is punishable by a prison term of five to 10 years and a fine of up to $150,000. Second-degree offenses also come with a non-expungeable felony criminal record. Being convicted of distribution of child pornography in the second degree requires inclusion on the Megan’s Law list of sex offenders and under Parole Supervision for Life.

Second degree offenses are handed down with a presumption of incarceration. Any person convicted with more than 25 items must be sentenced to a term of imprisonment with a parole ineligibility period added on.

In New Jersey, a first-degree offense is punishable by up to 20 years in State Prison, a fine of as much as $200,000, a non-expungeable felony criminal record and registration under Megan’s Law and Parole Supervision for Life.

As you can read above, the crime of creating, possessing or distributing child pornography is detailed and treated harshly by the courts. If you are accused of anything to do with child pornography, the first person you should talk to is Monmouth County child pornography attorney Tara Breslow-Testa.

For a free consultation call Tara Breslow-Testa at (732) 784-2880.