Obscenity laws in Florida
Disclaimer: This page is not intended as legal advice. It is provided to give you basic information to use as a starting point in discussions with your attorney.
Florida’s obscenity laws are codified in Chapter 847 of the Florida statutes. Obscenity laws cover offenses that relate to porn or improper relations with minors that do not involve touching. The most recognizable obscenity law is Chapter 847.0135 which covers computer pornography and traveling. This is more commonly associated with the show “To Catch a Predator,” where men are caught meeting up with what they believe to be underage girls willing to have sex with them. Only to find out that the underage girl was really an undercover cop. These types of stings happen quite often in Florida. Most of the time when an individual is caught up in this type of sting the name and photo of the individual ends up in the newspaper and on several websites. This can lead to loss of job, social stigma and problems in personal relationships. So it is important to stay away from any situation where your actions can be interpreted as trying to solicit a minor for sex or anything related to sex.
Although the traveling statutes are the most popular of the obscenity laws, there are several areas that are covered. These include:
- Selling pornography to minors
- Showing pornography to minors
- Pornography crimes such as:
- Transmitting porn to a minor
- Showing a pornographic video of yourself to a minor
- Traveling to meet a minor for sexual purpose
- Trying to meet a minor for sexual purpose in a chat room or
- Possessing child pornography
- Buying or selling a minor for a sexual purpose and
- Holding computer services liable for illegal pornographic acts committed on their servers
It is very important to note that ignorance of a minor’s age, a minor’s misrepresentation of his or her age, a bona fide belief of a minor’s age, or a minor’s consent may not be raised as a defense in most of these prosecutions. This means if for any reason you truly believed that the person was over 18 and it turns out they are not, you can still be prosecuted. You may not be able to raise the mistake of age as a defense.
Does this seem unfair? It is. But it is part of the law and it is something you should be aware of if you are accused of committing a sexual crime against a minor.
These crimes are all covered in Florida’s obscenity laws. Some crimes are more aggressively prosecuted than others. But in all cases you would face possible jail time. So it is important to fine quality representation if you are accused of breaking any of these laws. At Finebloom, Haenel & Higgins we are not only competent and capable, but also compassionate. We understand that these types of crimes are embarrassing and that they require the highest level of defense! Put our team to work for you! Call us now at 1-888-424-7777 to discuss your options. Our team is available 24/7 to discuss crafting a custom defense for you!
What type of penalties do I face if I am convicted of any type of crime under the obscenity statutes?
There are several penalties you can face if you are convicted of one of the crimes in the obscenity statute. These are:
- Fines for violating one of the obscenity laws can range from $1000 to $10,000 per count.
- Probation involves reporting to a probation officer once a month to report your progress through your punishment. You have to truthfully report your employment and residence as well as any conditions of your sentence that you have completed. You may be asked to undergo counseling as part of probation. In addition, if your crime involves a minor there will probably be restrictions on where you can live, work or visit. If your crime involved a computer, restrictions will be placed on your use for the term of your probation. The probation period can range from one year to 15 years per count depending on the crime you are found to have committed.
- The county jail is used to incarcerate offenders while their court case is pending if the person is unable to bond. If you are found guilty and sentenced to less than one year of incarceration, your sentence will be served at the county jail.
- Community Control
- Community Control is a hybrid of probation and jail. You are allowed home, but you are required to wear a device that tells the community control officer where you are at all times. If you are placed in community control you are not allowed to leave your residence unless it is for an approved activity. Approved activities are things such as work, meetings with your community control officer, court appointments, health appointments and activities mandated by the court (such as counseling). There is a charge for the monthly monitoring. If you leave your residence without approval it is a violation and you can face jail or prison as a result.
- Prison sentences are reserved for offenders who are sentenced to an incarceration period that is longer than one year. There are several prisons across the state of Florida. If you are sentenced to prison there is no guarantee you will be sent to a facility that is close to home. This can make it difficult for friends or family to visit you.
- Criminal Registration
- If you are convicted of a crime that requires registration (and most obscenity law that deal with minors have this requirement) you will have to register the address of your residence wherever you live for the rest of your life with the local sheriff. Failure to do so is a felony offense that can be punishable by up to five years in prison.
The type of penalty that you receive is dependent on the crime or crimes you are convicted of, how many counts you are convicted of, the age of the parties involved and your prior criminal record. If you have a prior criminal record, it is possible that the State can ask to enhance your sentence under certain provisions. To fully understand how much time you can be facing you need to consult a criminal defense attorney familiar with the sentencing guidelines of Florida.
OBSCENITY IN GENERAL
Florida has laws that govern “obscenity” in all forms. Art, phones, computers, live performances and movies. Some are pretty simple. Others are a bit more complicated. The general obscenity statutes apply to everyone regardless of age. Many of these are not commonly enforced. These charges usually come up when an organization or group of neighborhood members want to ban some type of performing art production, art exhibit or strip club from location in their area. But these acts are illegal and it is good to know what can be charged.
Obscenity over the phone
Florida Statue 847.0147 makes telephone obscenity illegal. If you are a telephone subscriber and you try to sell, offer for sale, or transmit, over telephone lines, any obscene material or message described and promoted as “adult” and of a nature which is commonly understood to be for the purposes of sexually oriented entertainment you can be guilty of a first degree misdemeanor punishable by up to one year in the county jail.
Obscenity in art, writings, film and theater
Florida Statute 847.011 is titled “Prohibition of certain acts in connection with obscene, lewd, etc., materials.” It is the “catch all” provision for anything that may be considered obscene. This statute does not specifically deal with materials sent to minors. It is designed to protect communities as a whole. Florida Statute 847.001 (10) defines “obscene” as the status of material which:
- The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;
- Depicts or describes, in a patently offensive way, sexual conduct (sexual conduct is defined in 847.001(16) as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed); and
- Taken as a whole, lacks serious literary, artistic, political, or scientific value.
In past cases, this statute has been cited in Florida by those who would like to ban nude art exhibits that are seemingly offensive. These “offensive” exhibits have included some types of art or pamphlets that depict homosexual activities, controversial theatrical art exhibits that depict live performances (not including strip shows, but actual sexual acts on stage), and films, magazines or written works that involved a controversial sexual matter.
Under the statute there must be more than just nudity or sexual activity to qualify as obscene under this statute. The nudity or sexual activity must appeal to “prurient interests” (which means it must be arousing). For injunctive relief to be granted or for the materials to be confiscated (which is the normal punishment) the State must show an irreparable harm. Many of the cases that have been prosecuted and litigated involve shows that have been performed in an arena where children were present. These were the cases shown to be the most successful, although there have been prosecutions involving private clubs that depicted live S&M type shows.
Because one of the criteria for a prosecution under this statute involves “community standards” it can be applied differently depending on what part of Florida you are located in at the time. Some parts of the state are much more conservative than others. What may be OK in the communities around the Florida Keys or Miami will be much different than what is considered acceptable in Pensacola or Ocala. This issue has been raised in defense of these cases in the past, and depending on the presiding judge, may or may not be successful.
Individuals that were prosecuted under this statute have raised many challenges including the right to privacy and free speech. However, the statute has been held to be constitutional. The most common form of “punishment” is fines, confiscation of the material or an order that bans future live productions. But if you are found guilty of this section it is a first degree misdemeanor punishable by up to one year in the county jail.
What if I promote the show or material or I want someone else to promote the show or material?
Florida statute 847.07 makes it a third degree felony punishable by up to five years in a Florida State prison to manufacture, issue, sell, provide, deliver, transfer, transmit, publish, distribute, circulate, or disseminate obscene material, or offer or agree to do the same, with or without consideration, for purposes of resale or redistribution or to hire someone to do so on your behalf. So if you promote something that is found to be obscene, or hire someone to promote your obscene work, you can be charged with a crime even if you are not involved in the actual production of the event or work.
It is also a third degree felony punishable by up to five years in a Florida State prison to require a consignee or vendor to accept obscene materials or to deny or revoke a franchise because the person will not accept or sell obscene material in accordance with Florida law.
What if I get the “obscene material” in another state and bring it back with me?
Florida Statute 847.06 makes it a first degree misdemeanor punishable by up to one year in the county jail to “knowingly transport into the state or within the state for the purpose of sale or distribution any obscene book; magazine; periodical; pamphlet; newspaper; comic book; story; paper; written or printed story or article; writing; paper; card; picture; drawing; photograph; motion picture film; figure; image; phonograph record, or wire or tape or other recording, or other article capable of producing sound; or any other matter of obscene character”.
If you have questions about whether your art, magazine, production, book, etc. may subject you to prosecution, it is best to consult with an attorney to prevent any unintended consequences. Florida has become a bit more progressive in recent years but there are many areas that are still quite conservative. So it is better to seek advice on the front end then to possibly end up with a criminal record. Avoid unnecessary charges and a criminal record! Call the professional defense staff of Finebloom, Haenel & Higgins today! We are available to consult 24/7. Call 1-888-424-7777 and protect your rights now!
SELLING/SHOWING/TRANSMITTING HARMFUL MATERIALS
(a/k/a PORNOGRAPHY) TO MINORS
There are several laws on the books that address the showing, selling or sending pornography to a minor under the age of 18. The material that you send does not need to depict the minor in the pornography. It can be as innocent as selling a Playboy magazine to a mature-looking 17 year old high school student. Florida Statute 847.012(8) states that: “The several sheriffs and state attorneys shall vigorously enforce this section within their respective jurisdictions.” This means that it is expected that this crime will be prosecuted to the fullest extent of the law, and that the law enforcement agencies across the state are to pursue arrests under this statute.
What do the laws make illegal with regard to the private sale or distribution of pornography to minors?
Florida Statute 847.012 makes it a third degree felony, punishable by up to 5 years in a Florida State prison to knowingly sell, rent, or loan for monetary consideration to a minor:
- Any picture, photograph, drawing, sculpture, motion picture film, videocassette, or similar visual representation or image of a person or portion of the human body which depicts nudity or sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors; or
- Any book, pamphlet, magazine, printed matter however reproduced, or sound recording that contains any matter defined in s. 847.001, explicit and detailed verbal descriptions or narrative accounts of sexual excitement, or sexual conduct and that is harmful to minors.
“Knowingly” under the definition of this statute means “having the general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both the character and content of any material described in this section which is reasonably susceptible of examination by the defendant and the age of the minor.”
Clear as mud, right? The intent is that the person who is selling the material needs to know what it is that they are selling, and needs to make a point to know the age of the person that is paying for the material. Mistake of age, not asking the age, having the minor consent to view the material or even having the minor lie about his or her age is not a defense.
What if I am the owner of a store that sells pornography? What are the limitations?
If you are a store owner, Florida statute 847.0125 makes it a first degree misdemeanor punishable by up to one year in jail to openly sell any type of book, magazine or video cover that depicts material that may be harmful to minors. These materials can be sold if you keep them behind the counter with some type of covering (so that only the title is visible for sale) or if it is kept in an area inaccessible to minors.
Florida Statute 847.0134 makes it a felony of the third degree punishable by up to five years in prison to have an adult entertainment establishment that displays, sells, rents, loans, distributes, transmits, shows, or exhibits any obscene material, or presents live entertainment or a motion picture, slide, or other exhibit that, in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, sexual bestiality, or sadomasochistic abuse and that is harmful to minors, within 2,500 feet of a school or school property.
The only exception is if your establishment is legally operating or has a permit from a local government to operate as adult entertainment establishments on or before July 1, 2001, or if you have been granted special permission by your city or county government.
What if I don’t sell it, I give it away?
Florida Statue 847.0133 titled “Protection of minors; prohibition of certain acts in connection with obscenity” says basically the same thing as the sales law. But it broadens the scope to include selling, renting, loaning, giving away, distributing, transmitting, or showing any obscene material to a minor. So even if you don’t make a profit, you can still be prosecuted.
“Obscene material” under this larger statute means “any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing paper, card, picture, drawing, photograph, motion picture film, figure, image, videotape, videocassette, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose.”
This statute covers many more forms of media and many other ways of distributing it than that of other laws. Almost everything, even a dirty comic can be considered obscene and land you in jail. If you are convicted, it is a felony of the third degree, punishable by up to five years in a Florida State prison.
What about movie theaters and live shows that show sexual acts?
Florida Statue 847.013 makes it a first degree misdemeanor punishable by up to one year in jail to knowingly expose minors to harmful motion pictures, exhibitions, shows, presentations, or representations for monetary consideration. This includes knowingly:
- selling or renting a videotape of a motion picture to a minor
- selling to a minor an admission ticket or pass or
- admitting a minor to premises where there is exhibited a motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts nudity, sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors.
The law does not apply when the minor is accompanied by his or her parents or either of them. So if the parents buy the ticket and accompany the minor it is thought that the parent would explain the acts seen, or filter the act or visual depictions they did not want the child to see. This offense, like others, does not allow as a defense the mistake of age or a misrepresentation of a minor’s age to be a defense. But if the minor lies about his or her age, or if someone lies about it for them, they may face charges as well.
Florida Statute 847.013(d) &(e) states that a minor may not falsely represent to the owner or to the person selling tickets that the minor is 17 years of age or older, with the intent to see the show or rent the tape. A person may not lie and say that he or she is the parent of any minor or that any minor is 17 years of age or older, with intent to allow the minor to see the show or rent the tape. If you lie and get caught, it is a first degree misdemeanor punishable by up to one year in jail (or if you are a minor, you can be prosecuted through the juvenile justice program and end up in a program or in DJJ).
Most of Florida is fairly conservative. Because of this these types of charges can be seen as a public nuisance and prosecuted as a way for the State to show they are meeting the community standard. If you are accused of a pornography crime, call the attorneys of Finebloom, Haenel & Higgins at once! Our staff is not judgmental. Our only concern is protecting your rights! Call us now at 1-888-424-7777. An attorney will assist you 24/7.
SELLING/SHOWING/TRANSMITTING PORNOGRAPHIC MATERIALS DEPICTING MINORS
Florida, as well as every other state in the union, has a vested interest in protecting children from sexual abuse. Because of this, Florida is very strict about the possession or creation of child pornography. You can be convicted of a child pornography crime even if you yourself are a minor. You can’t have any type of image of a child involved in any kind of sexual activity without it being a crime, and a serious crime at that!! If you are accused of a child pornography crime you need to hire an experienced sex crime attorney immediately to protect your interest!!
The Basic Law
Florida Statute 847.012(4) states that a person may not knowingly use a minor in the production of any type of magazine, photo, film, drawing, sculpture, etc, which depicts nudity or sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors, regardless of whether the material is intended for distribution to minors or is actually distributed to minors. You cannot use minors to create explicit and detailed verbal descriptions or narrative accounts of sexual excitement, or sexual conduct. To do so is a third degree felony punishable by up to five years in prison. This statute applies to anyone regardless of age.
Prosecutions under this section usually involve photos of minors. As technology has advanced, laws have been created to protect depictions of minors in computer and digital formats. These protections are codified under the computer porn and sexting laws found in the Florida statutes.
However it is charged, it is a very controversial crime punishable by substantial jail time. Call the dedicated defense team of Finebloom, Haenel & Higgins at 1-888-424-7777 to discuss all of the possible defenses.
What is sexting and can I be prosecuted for it?
It is becoming more and more popular for children of all ages to have cell phones. As technology changes, these cell phones have more and more capability to send, receive and view photos and video from one to another. You can post pictures on a Facebook page from a phone or send to other sites on the web. As this became more common, more and more underage kids sent naked or sexually explicit photos of themselves to others through their phones. This has been termed “sexting.”
Sexting, as listed in the laws of Florida, only applies to minors. If you are an adult with pictures of a minor, or if you are an adult that sends an inappropriate photo to a minor, you are charged under a separate obscenity law.
Florida Statute 847.0141 defines sexting in the following way:
A minor commits the offense of sexting if he or she knowingly:
- Uses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity. . . and is harmful to minors.
- Possesses a photograph or video of any person that was transmitted or distributed by another minor which depicts nudity . . . and is harmful to minors.
If the minor is found guilty of this crime, they face the following penalties:
- For a first offense, it is considered a “non-criminal infraction.” The minor will receive 8 hours of community service or, if ordered by the court in lieu of community service, a $60 fine. The court may also order the minor to participate in suitable training or instruction in lieu of, or in addition to, community service or a fine.
- For a second offense, sexting is considered a misdemeanor of the first degree and can be punished accordingly.
- If you have a third or subsequent offense, it is considered a felony of the third degree and can be punished accordingly
There are defenses available to a minor for a sexting offense. The statute specifically provides that a minor does not commit the offense of sexting if all of the following apply:
- The minor did not solicit the photograph or video.
- The minor took reasonable steps to report the photograph or video to the minor’s legal guardian or to a school or law enforcement official.
- The minor did not transmit or distribute the photograph or video to a third party.
This means if your child receives an inappropriate photo from his or her girlfriend, but does not report it, they can be found guilty of the crime of sexting.
This crime is receiving more and more media attention, and with that harsher and more aggressive prosecutions follow. If your child has been accused of sexting, it is important that you call an attorney immediately! At Finenbloom, Haenel & Higgins our staff is looking out for your young one with the utmost dedication. Call us now to discuss your child’s rights at 1-888-424-7777.
COMPUTERS, MINORS AND PORNOGRAPHY
There are several laws on the books in Florida to govern inappropriate transmissions between adults and minors via computer. These crimes fall into three basic categories:
- Computer Pornography (Where the offender possesses photos or videos of an underage child but there is no proof that the offender actually spoke with the actual child who is depicted. This is more commonly associated with downloaded materials from illicit sites)
- Computer Chatting or Solicitation (Where an adult engages in inappropriate conversations with and/or sends or receives inappropriate photos or video to or from an underage child)
- Traveling (where the offender not only engages is computer chatting with the underage child, but actually leaves to meet with the child in a separate location)
Committing any of these crimes is a felony!!! Because of the worldwide attention child sex trafficking has received, these crimes are prosecuted to the fullest extent of the law. Cops do undercover stings at all times!! It is very likely that if you are in a chat room and the person you are chatting with identifies themselves as a minor that it will actually be an undercover officer. The officer will record everything and use it to obtain a warrant for your arrest. They will then take you into custody at your home or place of work, confiscate all of your computer equipment and keep you at the county jail until you are able to post bond.
Bonds for these offenses are very high. The State always argues that there is no way to keep you away from a computer and therefore you are a risk and danger to the community. If you are able to be released, there are often attached circumstances such as GPS monitoring or conditions that you not be able to use a computer.
These crimes are very, very serious! If you are accused do not make any statements and contact a skilled defense attorney immediately!!! It is the only way you will have any chance of protecting your rights against the State’s prosecution.
CHILD PORNOGRAPHY IN GENERAL
Some of the child pornography laws are found under Chapter 827 of the Florida statutes. Chapter 827 deals with child abuse. In addition to prohibiting certain physical acts with children, it also sets out the following crimes for possessing child pornography:
827.071(4) – It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child. The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote.
Under the definition “promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same.
It means if you have three or more pictures, movies or other forms of media that show:
- actual or simulated sexual intercourse,
- deviate sexual intercourse (which is sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva)
- sexual bestiality,
- sadomasochistic abuse (which means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself)
- actual lewd exhibition of the genitals
- actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party or
- any act or conduct which constitutes sexual battery or
- simulates that sexual battery is being or will be committed
and one of the parties is a minor, you can be found guilty of “promotion”. Promotion means you are working with others to create or distribute the media for you or others to view; or that you are somehow transmitting or making the images available to be viewed by you or others.
What kind of penalty do I face if I am found guilty?
Whoever violates this subsection is guilty of a felony of the second degree, punishable by up to 15 years in prison. The sentence is up to each count or allegation. So if you have more than one photo, video, or other media, you can face up to 15 years for each piece.
What if I am not “promoting”? What if I have less than one photo or video that shows child pornography or I just look online?
Florida statute 827.017(5)(a) addresses other unlawful conduct when it comes to images, video or media that depict children in a sexual manner. This statute is the more commonly used child pornography law. This statute says:
“It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation is a separate offense. If such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes sexual conduct by more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense.”
So even looking at a photo or video is illegal?
Yes. You don’t have to actually keep a copy of the picture or video. Just seeing it is a crime if you know that it is a picture, video or other media source that shows a child in sexual way.
How much time am I facing if I am convicted of this statute?
A person who is found guilty of this crime commits a felony of the third degree, punishable by up to five years in prison for each offense.
Aren’t these laws just a copy of the computer laws that make child pornography illegal?
Today most child pornography is covered and charged under the computer statutes. But that does not mean that is the only way you can be charged. For example, if you download computer photos onto a jumpstick, or print the photos, the State can charge you under one of the pornography statutes listed above.
The State might also may be able to charge you twice if you happen to download or print computer images. The state could charge you once under the computer statutes for having the image on the computer, and once under the child pornography statute for downloading it onto another media device or printing the photo.
If you are accused of having or viewing any type of child pornography, you need to call an attorney with experience immediately!! These crimes are aggressively prosecuted and it takes a skilled lawyer to present all available defenses. It is also important to hire counsel with the resources to present a competent defense. Do not settle for second rate if you are accused of child pornography! Call the qualified defense team of Finebloom, Haenel & Higgins 24/7 to plan your strategy. Our attorneys will answer when you call 1-888-424-7777. Don’t delay! Protect your rights and call now!
The first type of computer crime involving minors is that of computer pornography. In short, it is illegal to have any type of photo or video of a sexual nature that depicts a person under 18 years of age. It is also illegal to publish or possess a minor’s name, address or physical description for the purpose of asking for some type of sexual conduct. Florida statute 847.0135 gives the official computer pornography definition as follows:
“A person who:
(a) Knowingly compiles, enters into, or transmits by use of computer;
(b) Makes, prints, publishes, or reproduces by other computerized means;
(c) Knowingly causes or allows to be entered into or transmitted by use of computer; or
(d) Buys, sells, receives, exchanges, or disseminates,
- any notice, statement, or advertisement
- of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information
- for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor,
- or the visual depiction of such conduct . . .”
What does that mean in English?
This means you can’t create, store or transfer information on a computer that identifies a minor in any way if the information is being used for a sexual purpose. You can’t have statements that ask for or offer any type of sexual act. You can’t have photos that depict a sexual act or pose. If you know of this information you can’t buy it, sell it, swap the information with a friend or download it. If you do you will be charged with a third degree felony and face up to five years in prison.
What if the person involved was an undercover officer posing as a child? Can I be found not guilty because the person was really an adult and not a child?
The fact that an undercover cop was involved in the photo or exchange of information instead of an actual child is not a defense. In reality, this is how most individuals get caught. The legislators considered the fact that there would be undercover operations when they created the statute. So using the fact that the information was that of an undercover officer instead of an actual child is strictly prohibited.
Can I be charged with more than one offense if I have more than one photo or piece of information?
You can be charged separately for each piece of information you have on your computer. So, for example, if you have 20 photos, you can face 20 counts. Each of these counts would be punishable by up to five years in a Florida state prison.
Can I just delete the files from my computer?
Law enforcement has trained computer experts who can recover “deleted” files from your device. So erasing a photo or other information from your computer may not necessarily protect you from prosecution.
The State prosecutors take these charges very seriously. It is best not to put yourself in the position of being accused. If you do find yourself charged with this crime, contact an experienced defense attorney immediately!!
COMPUTER SOLICITATION (CHATTING)
Florida statute 847.0135(3) makes it illegal to engage in sexual chatting or sexual solicitation with a minor online. It also makes it illegal to solicit a parent or guardian to make their child available for a sexual purpose. This is true whether you use chat rooms, bulletin boards, craigslist, dating services, email or any other form of electronic exchange.
What does solicitation mean?
Solicitation means to ask for something. When you “solicit” a minor or the parent or guardian, it means you have asked them to do something or to allow you to do something.
The exact wording of the statute states that:
“Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
- Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act . . or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; or
- Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act . . . or to otherwise engage in any sexual conduct . . .
commits a felony of the third degree”
The basic understanding of the statute is that it is illegal to use your computer to ask a minor to perform some type of sexual act; or to ask the parent or guardian if it is OK for the child to perform some type of sexual act for you or with you. If you do, you face up to five years in state prison.
So how much time am I facing if I am convicted?
It depends. A third degree felony is punishable by up to five years in prison. Under the statute, each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission may be charged as a separate offense. So if you only have one count, you face up to five years. If you asked more than once, you can receive five years for every time you asked.
What if the minor lied about their age?
Florida statute 847.0135(3) makes it illegal for a minor to lie about their age when being solicited for sexual activity. The statute specifically says that “any person who, in violating this subsection, misrepresents his or her age, commits a felony of the second degree.”
However, even if the minor is charged with misrepresentation, the State may still prosecute you. If the State feels that even though the minor lied about his or her age but for some reason you should have known better you can be prosecuted. If the individual lied about their age in your case you need to discuss with your attorney whether or not you may be able to present this as a defense.
What if during the chat we use skype or some other means to send sexual videos, photos or to have virtual sex?
You will be arrested. Florida statute 847.0135(5) prohibits computer transmissions of this type. If you masturbate, expose your genitals or commit some other type of physical sexual act – or a simulated sexual act – that does not involve the touching of a minor you face a felony charge.
To be charged under this statute you must have reason to know or believe that a minor under 16 will view or receive this information by computer or television monitor.
For example: You are on Skype with a minor you know to be under 16 years of age. You start to masturbate as they watch. You know they are watching and you know they are underage. You are intending for them to see you. You can be charged with a crime.
Let’s say for example, you are dating someone who has minor children. It is 2:00 a.m. You are on Skype with the adult. The kids are in bed. The two of you are engaged in a sexually explicit video chat. As you are masturbating the minor child comes in crying because they had a nightmare and they see you on the screen. You both immediately end the chat. You might have a defense.
What type of sentence can I expect if I am convicted?
If you are over the age of 18 and the recipient is under 16 years of age, the charge is a second degree felony punishable by up to 15 years in prison for each act. If you are under 18 years of age and the recipient is under 16 you face a third degree felony.
What if I was arrested as part of an undercover sting so the person really wasn’t under 16?
The fact that an undercover operative or law enforcement officer was involved instead of an actual minor is not a defense.
Can I only be convicted if I use a computer? What if I send a sexual photo or video over the phone or some other way?
Florida statutes 847.0137 and Florida statutes 847.0138 make it illegal to transmit and type of pornography or material harmful to a minor by any electronic means. This means internet, phone, videocamera, digital camera, through a Wii, x-box or playstation connection, Facebook, twitter or any other type of electronic equipment or device.
“Transmit” in both statutes means “the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device. . .”
How does age affect my child pornography charges?
The intent of the statute is to protect minors. So under the statute, it does not matter whether the image is a child in a sexual pose or an adult in a sexual pose sent to a minor. Both can get you in trouble. In order to enforce this, there are two ways you can be charged:
- It is illegal to transmit any type of child pornography that shows a minor in a sexual pose or position to anyone whether they are an adult or child. So if the sexual photo or material involves a minor, then the age of the person you send it to does not matter
- If the pornography shows an adult in a sexual pose or position, then it is illegal to send it to someone you know to be a minor. A minor is someone under the age of 18. So if you sent an adult photo to another adult, it is not automatically illegal.
What is the penalty for sending child pornography or sending pornography to a minor?
Using electronic devices of any type to transmit images of children, or images harmful to children is a third degree felony. Each transmission is a separate charge. This means every time you transmit an image that is illegal under this statute, you face five years in prison.
COMPUTER TRAVELING STATUES (Florida’s “To Catch a Predator” Statutes)
Florida statute 847.0135(4) is titled “TRAVELING TO MEET A MINOR”. It is the statute that officers use to set up stings to catch individuals that they believe want to have sex with young children. These types of stings were made popular by the show “To Catch a Predator.”
How do these stings work?
How the sting usually works is that an undercover officer poses as a teenage girl or boy in a chatroom. They engage the adult in some type of sexual converstion. Eventually, the “teen” asks if the adult would like to meet – or the adult makes the suggestion that the two meet in person. A place is then arranged. The adult travels to meet the “teen.” When the adult arrives and walks in, they are greeted by officers and arrested!
What is the law? What is my risk?
A full explanation of this statute is explained on our page “COMPUTER TRAVELING STATUES (Florida’s “To Catch a Predator” Statutes).” But the underlying principal is that if you use your computer to speak with an underage person, or a person you believe to be underage, and then you travel to meet them, you can be sentenced to 15 years in prison!!!
What do I do if I am arrested?
DO NOT ANSWER ANY QUESTIONS AND ASK FOR A LAWYER IMMEDIATELY!!! Do not make any statements to the officer. Anything you say is an admission and can be used against you. Remain silent and call an experienced attorney right away to protect your rights!!
At the law offices of Finebloom, Haenel & Higgins we understand the embarrassment and stigma that can accompany these types of accusations. Our team is not here to make the process more uncomfortable. We are here to assist you. Let us help you navigate the process and craft a defense unique to you! Call us now at 1-888-424-7777 to discuss your options 24/7. We are here to fight for you!
In addition to criminal charges, prison time, and criminal fines, the statutes allow for civil remedies.
The most popular civil remedy is that of an injunction. When an injunction is filed it prevents the party from presenting, showing or sharing whatever it is that may be obscene. This is used often to prevent art shows or live shows that are felt to be too risqué for public viewing.
If an injunction is filed, the party that wants to show the material has a right to be heard. The judge hears both sides and then makes a ruling. If the judge denies the injunction then the material to be shown, presented or shared. If it was confiscated the material will be returned. Sometimes the judge will place restrictions such as the time of day or location for the presentation.
If the judge grants the injunction then the photo, art, presentation or display cannot be shown. To do so anyway can lead to a civil contempt proceeding which is punishable by up to six month in jail and/or civil fines.
Forfeiture means the taking of property. If you are found to have committed a criminal act, the government can initiate proceedings to take the items you used to commit the crime.
The most popular forfeiture proceedings are those involving money made from the illegal sale of pornography. The government will also try to seize video and computer equipment used to make illegal or illicit pornography. There is a procedure that must be followed for the government to take these items from you. But if the judge rules in their favor the government will be allowed to keep your personal possessions and/or money.
The Florida statutes have a special law for children who are victims of sexual exploitation that allows a civil suit to recover monetary damages. This type of civil action is governed by Florida statute 847.01357. This statute allows children under the age of 18 who were exploited in a sexual way to sue offenders for monetary compensation.
The victim has three years after reaching the age of majority to sue. For example, if a child is 3 years old when the offense happens, they have 18 years to bring a suit against the person who harmed them (If they are 3, it will take 15 years for them to reach 18, then they have 3 years from that date to decide to sue).
To recover the person must show that they suffered personal or psychological injury as a result of the exploitation. Damages under the statute are presumed to be at least $150,000. So if the jury were to rule against you, that is the minimum amount you would have to pay.
Having a criminal conviction makes it much harder to win a civil suit. It is all the more reason to hire a quality defense attorney at the beginning of a case. A good defense attorney will be able to explain all ramifications to you so that you can make the best decisions for you.
If you have been accused of any of these crimes, call the experienced and aggressive attorneys of Finebloom, Haenel and Higgins now at 1-888-424-7777. We are available 24/7 to take your call. Let our combined skill, experience and resources work for you!