Child Pornography Distribution and Possession Laws

The United States has very tough child pornography laws. Possessing even one image of a child engaged in sexually explicit conduct can result in a prison sentence. (It may also be a crime when an adult looks at deepfake pornographic of a child.) Distributing child pornography is punished more severely than simply possessing it. Here's an overview of the types of federal child pornography laws and penalties.

What Is the Legal Definition of Child Pornography?

Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor. A minor is a person under the age of 18 years. Visual depictions include:

• photographs
• film
• videos
• pictures
• computer-generated images indistinguishable from an actual minor, and
• images modified to look like an identifiable minor.

Sexually explicit conduct covers more than sexual activity. A nude image of a child can be child pornography if it is sexually suggestive. (18 U.S.C. § 2256(8) (2024).)

What Makes a Child Pornography Case Federal?

Federal law prohibits the production, distribution, reception, and possession of images of child pornography using means of interstate or foreign commerce. The term "interstate and foreign commerce" sounds complicated but it just means using the internet or mail to transport either child pornography or the materials used to download or store child pornography (such as a computer) across state or international borders. Almost all child pornography cases can be prosecuted in federal court if federal prosecutors decide they want the case.

(18 U.S.C. §§ 2252, 2252A (2024).)

What Does It Mean to Possess Child Pornography?

It is a federal crime to knowingly possess child pornography. To convict someone of possession of child pornography, prosecutors must prove that the person had control over the material (direct or indirect) and that the person knew the material contained visual depictions of a minor engaged in sexually explicit conduct.

A person who accidentally stumbles across child pornography on their computer is not guilty of possessing child pornography if they immediately destroy it or report it to law enforcement. A person who has no idea that a cached temporary internet file on their computer contains child pornography is not guilty of possessing child pornography—you can't possess something you don't know exists. But a person who accidentally downloads child pornography and decides to keep it knowing of its character is guilty of possessing child pornography.

What Counts as Distributing Child Pornography?

When people hear the word distribution, they often think of someone sharing or selling large quantities of something. For example, you might think of college students distributing flyers, a charity distributing food and clothing to needy families, or a drug dealer distributing fentanyl.

Under federal law, to distribute child pornography means to deliver or transfer possession of it to someone else, with or without any financial interest in the transaction. A person can be charged with distributing child pornography when they physically or electronically share even a single image.

Sharing Physical Materials

Distributing child pornography includes mailing or hand-delivering hard copies of sexually explicit photographs or videos of children to another person. Likewise, sharing a flash drive or CD containing prohibited images is distributing child pornography. Federal courts have said that even allowing another person to access and print a prohibited image you possess is enough to support a conviction for distributing child pornography. Finally, a person who sells sexually explicit images of children has distributed child pornography.

(18 U.S.C. §§ 2252, 2252A, 2256(8) (2024); United States v. Roybal, 737 F.3d 621 (9th Cir. 2013).)

File-Sharing and Sexting

These days, most child pornography is distributed online. People who share electronic files and images via the internet or private networks can be charged with distributing or receiving child pornography. Federal courts have found that you don't have to transfer a prohibited file to a specific person to distribute child pornography— maintaining images in a shared folder accessible to others via peer-to-peer file sharing is enough. (United States v. Caparotta, 890 F.Supp.2d 200, (E.D.N.Y. 2012).)

Similarly, forwarding explicit photos of minors via text message can be considered distributing child pornography. Even teenagers who have shared explicit photos of themselves (sometimes called "sexting") can potentially face serious criminal charges. Learn more about teen sexting laws and penalties.

Child Pornography Penalties

The federal penalty for possessing child pornography is a fine and up to 10 years in prison. If the image involves a minor under 12 years of age, the punishment increases to up to 20 years in prison. Offenders who have prior convictions involving child pornography or sexual abuse face 10 to 20 years in prison.

The penalty for distributing or knowingly receiving child pornography is even more severe, carrying a prison sentence of 5 to 20 years, plus stiff fines. Repeat offenders face 15 to 40 years in prison.

The United States Sentencing Commission reports that 99% of individuals sentenced for child pornography in 2023 were sentenced to prison, with an average sentence of 114 months (9.5 years). People convicted of child pornography-related offenses in federal court have to register as sex offenders. Registered sex offenders often have a hard time finding a job and a place to live.

Each state has its own laws prohibiting the possession and distribution of child pornography. Offenders can be punished under state child pornography laws in addition to, or instead of, federal laws.

(18 U.S.C. § 2252A(b) (2024).)

Talk to a Criminal Defense Lawyer

A criminal record, especially for a sex crime, can make it difficult to obtain a job or a professional license, or even rent an apartment. Of course, these collateral consequences are in addition to incarceration, fines, and sex offender registration.

If you are accused of or charged with a child pornography-related offense, you should talk to a criminal defense attorney. An experienced local attorney can help you decide on a path forward, whether that includes arguing for a dismissal, going to trial, or negotiating a favorable plea bargain.