Child Exploitation and the Internet

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Child Exploitation and the Internet

• Sean B. Hoar
• sean.hoar_at_usdoj.gov
• 541-465-6792

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What is child pornography?

• In a nutshell
• any visual depiction
• of a minor
• engaged in sexually explicit conduct

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any visual depiction

• Includes photographs, films, videos, pictures,
  etc.
• Includes data stored on a disk that can be
  converted to an image
• Includes undeveloped film

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a minor

• Person under the age of 18
• Does not matter that the conduct depicted is
  legal to engage in under states age of consent
  law

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sexually explicit conduct

• Actual or simulated
• sexual intercourse, including genital-genital,
  oral-genital, anal-genital, or oral-anal, whether
  between persons of the same or opposite sex
• bestiality
• masturbation
• sadistic or masochistic abuse or
• lascivious exhibition of the genitals or pubic
  area

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lascivious exhibition of the genitals or public
area

• U.S. v. Dost, 636 F.Supp. 828 (N.D. Cal. 1986)
• - focal point on genitalia/pubic area
• - setting is sexually suggestive
• - unnatural pose or inappropriate attire
• - fully or partially clothed
• - depiction suggests sexual coyness/willingness
• - designed to elicit sexual response in viewer

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Further guidance on lascivious exhibition

• U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)
• lasciviousness is not characteristic of child but
  exhibition which photographer sets up
• U.S. v. Grimes, 244 F.3d 375 (5th Cir. 2001)
• images covered by definition despite pixelation
  covering pubic area
• U.S. v. Knox, 977 F.2d 815 (3d Cir. 1992)
• exhibition of genitals includes genital area
  covered by clothing

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So what conduct is prohibited?

• Possession
• Receipt
• Transportation/shipment
• Distribution
• Production
• And ALL of the child pornography statutes include
  attempt and conspiracy with the same penalties as
  a completed offense

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Key to federal jurisdiction

• Interstate commerce or foreign commerce

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Federal jurisdictional bases

• Three Commerce Clause jurisdictional bases in our
  child pornography statutes
• 1. Image traveled in interstate or foreign
  commerce
• 2. Image was produced using materials that had
  been mailed, or shipped, or transported in
  interstate or foreign commerce
• 3. For production (2251), offender intended that
  image would travel interstate

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Transportation18 U.S.C. 2252A(a)(1)

• Knowingly transports or ships any visual
  depiction of a minor engaged in sexually explicit
  conduct
• Interstate nexus
• in interstate or foreign commerce
• Examples of conduct
• Penalty mandatory 5 years and up to 20 years
• One prior mandatory 15 years and up to 40 years

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Receipt or Distribution18 U.S.C. 2252A(a)(2)

• Knowingly receives any visual depiction of minor
  engaged in sexually explicit conduct
• Interstate nexus
• that has been mailed, shipped or transported in
  interstate or foreign commerce
• Examples of conduct
• Penalty mandatory 5 years and up to 20 years
• One prior mandatory 15 years and up to 40 years

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Guideline Sentence for Receipt U.S.S.G. Section
2G2.2 22 - Base offense level 2 -
Prepubescent minor 4 - S M Violent
Depictions 2 - Use of computer 4 - At
least 300 but fewer than 600 images Total
34 - 3 - Acceptance of Responsibility
31 Criminal History Category I, Offense Level
31, 108-135 months
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Guideline Sentence for Distribution U.S.S.G.
Section 2G2.2 22 - Base offense level 2
- Prepubescent minor 5 - Distribution for
thing of Value 4 - S M Violent
Depictions 5 - Pattern of Abuse 2 -
Use of computer 4 - At least 300 but fewer
than 600 images Total 44 - 3 -
Acceptance of Responsibility 41 Criminal
History Category I, Offense Level 41 324-405
months
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Possession18 U.S.C. 2252A(a)(5)

• Knowingly possesses one (1) or more visual
  depictions
• Interstate nexus
• in special federal jurisdiction
• that was produced using materials that have been
  transported in interstate or foreign commerce
• that has been transported in interstate or
  foreign commerce
• Examples of conduct
• Penalty up to 10 yrs
• One prior mandatory min 10 years and up to 20
  years

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Guideline Sentence for Possession U.S.S.G.
Section 2G2.2 18 - Base offense level 2
- Prepubescent minor 4 - S M Violent
Depictions 2 - Use of computer 4 -
At least 300 but fewer than 600 images Total
30 - 3 - Acceptance of Responsibility
27 Criminal History Category I, Offense Level
27 70- 87 months
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Common defenses

• Age must prove child is a minor
• suggestive file names, folder names, label on
  disks
• NCMEC database

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Common defenses

• not a real child
• Movie clips
• Digital expert
• Medical expert
• Still a jury question

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Common defenses

• I got a virus!
• Forensics
• Virus software installed?
• Any viruses found?
• What do they do?
• Capable of depositing CP on computer??

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Common defenses

• It was somebody else
• Multiple users in the house
• Wireless internet/hacker
• Forensics match internet activity.
• Was CP downloaded at the same time as e-mail
  activity?
• Online banking?
• Downloaded over long period of time?

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Common defenses

• I dont know much about computers
• Look for evidence of computer sophistication such
  as
• Method of organizing files and folders
• Peripherals
• Installed programs

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Production 18 U.S.C. 2251(a)

• Using, persuading, enticing, etc., a minor to
  engage in sexually explicit conduct for the
  purpose of producing a visual depiction of that
  conduct
• Interstate nexus
• depiction was produced using materials mailed or
  transported in interstate or foreign commerce
• depiction was mailed/transported in
  interstate/foreign commerce
• suspect knows or has reason to know that visual
  depiction will be mailed or transported in
  interstate or foreign commerce
• Examples of conduct
• Penalty mandatory 15 years and up to 30 years
• One prior qualifying conviction 25 to 50 2
  priors 35 to life

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Advertising 18 U.S.C. 2251(d)

• Knowingly makes, prints, or publishes any notice
  or advertisement seeking or offering to
• receive, exchange, buy, produce, display,
  distribute, or reproduce CP or
• participate in any act of sexually explicit
  conduct so CP can be produced
• Interstate nexus advertisement was or suspect
  knows or has reason to know that the notice or
  advertisement will be transported in interstate
  commerce
• Examples of conduct
• Penalty mandatory 15 years and up to 30 years
• One prior mandatory 25 years up to 50 years
• Two priors mandatory 35 years up to life

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Obscene Representations of the Sexual Abuse of
Children18 U.S.C. 1466A

• Targets obscene images of minors engaging in
  hardcore actual or simulated sexual acts
• Includes drawings, cartoons, sculptures or
  paintings (unlike child pornography statutes)
• Production, distribution, receipt, and possession
  with intent to distribute
• Examples of conduct
• Penalty same as child pornography penalties

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Transfer Obscene Material to Minor 18 U.S.C.
1470

• Using the mail or any facility or means of
  interstate or foreign commerce, knowingly
  transfers obscene matter to a person less than 16
  years, (knowing they are less than 16) or
  attempts to do so
• Examples of conduct
• Penalty up to 10 years

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Enticing 18 U.S.C. 2422(b)

• Use facility or means of interstate or foreign
  commerce to knowingly persuade, induce, entice,
  coerce person under 18 to engage in prostitution
  or in any illegal sexual activity (or attempts)
• Examples of conduct
• PROTECT Act April 30, 2003 5 years mandatory
  minimum, maximum 30 years
• Adam Walsh Act July 26, 2006 10 year
  mandatory min to maximum of life

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Under the age of 18?

• Actual age doesnt matter it is what defendant
  thought
• U.S. v. Farner, 251 F.3d 510 (5th Cir. 2001)
• Defendant traveled to have sex with a 14 year-old
  who turned out to be an FBI agent
• Argued impossibility on appeal
• Impossibility was factual, because the defendant
  unquestionably intended to engage in the illegal
  conduct but failed only because of circumstances
  unknown to him

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Direct contact with minor required?

• Section 2422(b) does not require direct contact
  with a minor or an undercover agent posing as a
  minor encompasses conduct where a defendant
  arranges to have sex with a minor through
  communications with an adult intermediary,
  including an adult law enforcement agent posing
  as a parent of a minor child
• United States v. Murrell, 368 F.3d 1283 (11th
  Cir. 2004)

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Transporting Minor18 U.S.C. 2423(a)

• Knowingly transports a minor in interstate or
  foreign commerce with intent minor engage in
  prostitution or any illegal sexual activity or
  conspires or attempts to do so
• Examples of conduct
• Protect Act Effective April 30, 2003 5 years
  mandatory minimum, maximum 30 years
• Adam Walsh Act Effective July 26, 2006 10
  year mandatory minimum, maximum life

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Traveling18 U.S.C. 2423(b)

• Interstate or foreign travel for purposes of
  engaging in any illicit sexual conduct
• Illicit sexual conduct Chapter 109A sex act
  with minor or a commercial sex act with minor
• Examples of conduct
• PROTECT Act April 30, 2003 maximum 30 years
• If minor is under 12, can charge 18 U.S.C.
  2241(c) which carries mandatory 30 years and max
  life

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Engaging in Illicit Sexual Conduct in Foreign
Places18 U.S.C. 2423(c)

• Enacted by PROTECT Act
• U.S. citizen or alien admitted for permanent
  residence who travels in foreign commerce, and
  engages in any illicit sexual conduct with
  another person
• Examples of conduct
• Penalty Not more than 30 years.

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Buying/Selling Children 18 U.S.C. 2251A

• Parent, guardian or person w/custody or control
  sells or transfers custody, or offers to do so,
  or person purchases or obtains custody
• With knowledge the minor will be portrayed in
  visual depiction, or with intent to promote
  sexually explicit conduct for purpose of
  producing a visual depiction
• Interstate Nexus Actor or victim traveled in
  IC/FC or any offer was communicated or
  transported in IS/FC
• Examples of conduct
• Penalty 30 year mandatory min to max of life

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Mandatory Life Imprisonment 18 U.S.C. 3559(e)

• Convicted of federal sex offense in which victim
  is age 16 or younger
• 2241, 2242, 2244(a)(1)
• 1591, 2422(b), 2423(a)
• 2251, 2251A
• At time federal sex offense committed, defendant
  had previously been convicted of a federal or
  state felony sex offense
• Examples of conduct

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Adam Walsh Act

• Effective date July 27, 2006
• Among several other things, it created a New Sex
  Offender Registration Provision

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18 U.S.C. 2250

• Federal Failure to Register Offense
• Applies when
• Person is required to register under Sex Offender
  Registration and Notification Act
• Person required to register on basis of federal,
  (D.C., tribal, or territorial) offense or
• Person travels in interstate or foreign commerce
  and knowingly fails to register or update
  registration as required.
• Penalty up to 10 years

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Child Exploitation and the Internet

• Sean B. Hoar
• sean.hoar_at_usdoj.gov
• 541-465-6792