WHAT YOU SHOULD KNOW IF YOU ARE CHARGED WITH CHILD EXPLOITATION/CHILD PORNOGRAPHY IN NORTH CAROLINA

In North Carolina, child pornography is a crime under both state and federal law.  Legally, child pornography is called sexual exploitation of a child/minor.  A minor is anyone under the age of 18.  Under both state and federal criminal laws, sexual exploitation of a child/minor is considered a felony and carries significant prison time of up to life in prison, as well as other punishments, if convicted under federal law.  The following is an overview of North Carolina criminal charges and punishments related to child pornography or exploitation.

If you are being investigated or have been charged with sexual exploitation of a child under North Carolina law, you should immediately retain an experienced and proven North Carolina criminal defense team, like the ones at Marcilliat & Mills PLLC.  Just as importantly, you need to retain a criminal defense team if you are being investigated for child pornography and law enforcement officials are asking to question you. You need experienced legal help because you might accidentally admit to the crime. For example, a mistaken belief regarding the age of the person depicted is NOT a defense to a charge of sexual exploitation of a minor in North Carolina.  So, it is no defense—and it will damage your defense—if you respond to a question from a law enforcement officer by saying, “yes, that video was on my computer, but I thought she was 18.” By saying that, you have admitted the essential elements of the crime.

North Carolina Sexual Exploitation of a Minor

Under North Carolina law, sexual exploitation of a minor is divided into three categories:

• First degree sexual exploitation of a minor, which criminalizes the manufacture of, production of, or facilitation of child pornography/live performances (C. General Statute § 14-190.16)
• Second degree sexual exploitation of a minor, which criminalizes the receipt or distribution of child pornography or recording live performances (C. General Statute § 14-190.17)
• Third degree sexual exploitation of a minor, which criminalizes the possession of child pornography (C. General Statute § 14-190.17A)

All of the above are felony level crimes in North Carolina.  First degree sexual exploitation of a minor is a Class C felony, second degree is a Class E felony, and third degree is a Class H felony.  A Class A felony is the highest-level felony in North Carolina.

Elements: What the Prosecutors Must Prove for First-Degree Sexual Exploitation of a Minor

To obtain a conviction for first degree sexual exploitation of a minor, the State must prove the following elements:

• The images or depiction are of a minor (a person under the age of 18) engaged in “sexual activity,” and
• The accused knew “the character or content of the material or performance,” and one of the following:
  • The accused produced or created the material that contains a visual representation depicting the sexual activity of a minor; or
  • For a live performance, the accused uses, employs, induces, coerces, encourages, or facilitates a person under the age of 18 to engage in or assist others to engage in sexual activity; or
  • The accused has “custody or control” of a minor and “permits” the minor to engage in sexual activity for a live performance or for the purpose of producing or creating the child pornography; or
  • The accused transports or finances the transportation of a minor through or across North Carolina with the intent that the minor engage in sexual activity for live performance or for the purpose of producing/creating child pornography; or
  • The accused, for sale or for pecuniary gain, records, photographs, films, develops or duplicates child pornography

What are Pornographic “Materials”?

For purposes of sexual exploitation of a child in North Carolina, pornographic “materials” are defined as “pictures, drawings, video recordings, films, or other visual depictions or representations but not material consisting entirely of written words.” N.C. General Statute § 14-190.13(2).

What is “Sexual Activity?”

We all have a common-sense definition of what constitutes sexual activity, but criminal statutes must provide an actual definition, and generally do not rely on “common-sense definitions.”  For purpose of sexual exploitation of a child in North Carolina, our General Assembly has defined any of the following as “sexual activity”:

• Masturbation: Whether done alone or with another human or an animal
• Vaginal, anal, or oral intercourse: Whether done with another human or with an animal
• Touching as an act of apparent sexual stimulation or sexual abuse of the genitals, pubic area, or buttocks of another, or the breasts of a human female (whether clothed or not)
• Bondage or torture: Specifically, “an act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in a revealing or a bizarre costume; note that sexual stimulation or abuse does not seem to be required
• Excretory functions
• Insertion of objects and/or body parts into another person’s anus or vagina
• The lascivious exhibition of the genitals or pubic area of any person

N.C. General Statute § 14-190.13(5).

Elements: Second Degree Sexual Exploitation of a Minor

Second-degree sexual exploitation of a minor is a less severe crime since it involves filming, recording or distribution rather than the creation of pornographic materials involving minors. To obtain a conviction for second-degree sexual exploitation of a minor, the State must prove the following legal elements:

• The images or depiction are of a minor (a person under the age of 18) engaged in “sexual activity,” and
• The accused knew “the character or content of the material or performance,” and one of the following:
  • The accused recorded, photographed, filmed, developed, or duplicated material containing a visual representation of a minor engaged in sexual activity; or
  • The accused distributed, transported, exhibited, received, sold, purchased, exchanged, or solicited material containing a visual representation of a minor engaged in sexual activity

Other definitions and aspects of the crime of second-degree sexual exploitation of a minor are the same as those listed above for first-degree sexual exploitation of a minor.

Elements: Third Degree Sexual Exploitation of a Minor 

Third-degree sexual exploitation of a minor is the least severe of the three under North Carolina state law and involves the possession of pornographic materials involving minors. To obtain a conviction for third degree sexual exploitation of a minor, the State must prove the following legal elements:

• The images or depiction are of a minor (a person under the age of 18) engaged in “sexual activity,” and
• The accused knew “the character or content of the material or performance,” and
• The accused possessed material that contained a visual representation of a minor engaging in sexual activity

What is “Sexual Activity” for Third Degree Sexual Exploitation of a Minor?

The definition of “sexual activity” is the same as those listed above for first-degree sexual exploitation of a minor except that it excludes depictions of excretory functions.  N.C. General Statute § 14-190.13(5)(e).

Punishments

As noted, all degrees of sexual exploitation of a minor are classified as felonies in North Carolina. The classifications and possible prison sentences are as follows:

• First degree sexual exploitation of a minor—Class C felony which can carry a potential sentence of 44 to 231 months
• Second degree—Class E felony which can carry a possible sentence of 15 to 88 months
• Third degree—Class H felony which nominally carries a possible sentence of 4 to 39 months in prison

The prison terms listed above are based on the North Carolina sentencing guidelines, include calculations for mitigating/aggravating circumstances, and take into account prior convictions. North Carolina uses a grid that determines the sentence range for any felony offense. The class of felony is listed along the rows with ranges for aggravating and mitigating circumstances. These are cross tabulated with columns that determines the prior conviction level based on a “point system.”

Legal Defenses to Charges of Sexual Exploitation of a Minor

Depending on the facts of your case, there may be several legal defenses that can be asserted against a charge of sexual exploitation of a minor. As noted, “mistake” with respect to age is not a defense. All three North Carolina statutes specifically state that “[m]istake of age is not a defense to a prosecution…” That being said, here are some possible legal defenses:

• Innocence/Not Guilty – Demonstrating innocence is sometimes possible. Mistaken identity is one example of a potential innocence defense. Another possible way to show innocence is to demonstrate error with respect to possession (that is, something like “not my materials” or “not my computer” or “not my download”).
• Lack of intent or knowledge –  To obtain a conviction, the government prosecutors must show that the accused “knowingly” viewed a live performance or dealt with materials involving sexual activity of minors. Depending on the circumstances, it may be possible to show that there was no “knowing” involved. Hypothetically, maybe the title of the video in question is “Short People Having Fun” but it turns out that the “short people” are minors. This is a difficult defense because it requires that, at the moment that the accused discovered that minors were involved, it must be shown that the accused immediately stopped watching or looking at the depictions.
• Inadvertence – Showing inadvertence is another method of demonstrating lack of intent and/or mistake. Here the idea is to demonstrate that the materials were downloaded or obtained through inadvertence. Again, this is a difficult defense to win because, like the example above, it must be shown that at the moment that the inadvertence was discovered, the accused immediately stopped watching or looking at the depictions. Further, if computers are involved, it may be necessary to retain forensic computer science experts to examine and offer expert opinion testimony with respect to downloading history and other technical aspects of the computer-related evidence.
• Hacking – This is another possible defense if computers and the internet are involved. But like the previous example, forensic computer science experts will be needed to demonstrate the unauthorized infiltration of the computer system at issue.
• The person depicted was not a minor – To obtain a conviction, the prosecution must show that the person engaged in the live performance or depicted in the materials was under the age of 18. Sometimes it can be shown that the person engaged in the activity or depiction was not in fact under the age of 18. This is a potential legal defense, but difficult to show. This potential defense will only succeed if there is no advertisement or suggestion in the title or text or presentation that suggests that the performance involves a minor. For all three North Carolina statutes criminalizing sexual exploitation of minors, the statutes allow the court to presume that the person involved IS a minor if the “material, through its title, text, visual representations or otherwise…” suggests that the person engaged in the sexual activity is a minor.  C. General Statute § 14-190.16(b). For example, if the video’s title is “Sixteen Year Old Gangbang,” the court is allowed to presume that the persons depicted were underage, even if they were not. The reasoning is that, from the vantage point of the accused, the accused thought that the persons involved were minors. That is sufficient for proof of intent. Since this is a legal presumption, it can be overcome with other facts; however, these sorts of presumptions can be difficult to overcome.
• Technical legal defenses – Particularly if computers and the internet are involved, technical legal defenses might be available based on constitutional protections that are afforded the criminally accused. In particular, violations of search and seizure rules and failures to obtain proper warrants can be used to exclude evidence, which makes it more difficult for the prosecutors to obtain a conviction.

Contact Our North Carolina Criminal Defense Team Today

If you are facing sexual exploitation charges in North Carolina, contact Marcilliat & Mills PLLC immediately. Your criminal defense must begin as soon as possible. We have the proven experience to give you the best chance of avoiding a conviction. Marcilliat & Mills PLLC knows North Carolina criminal law and knows how to prepare the strongest possible defense strategy for your case. We will fight for you to help you beat the charges you are facing.

Do not hesitate to get in touch with us to learn more about how we can assist your criminal defense. Contact the Marcilliat & Mills PLLC today for more information.