Child Pornography: What Actually Is It, and What Are the Consequences?

Child pornography harms everyone who comes into contact with it. The secret industry abuses and exploits one of our most vulnerable populations in its creation, while its distribution feeds the addiction and mental diseases of its consumers.

But what is child pornography, according to the courts? And, what could happen to those convicted of having or distributing it?

The Legal Definition of Child Pornography

Child pornography may feel a bit like “I’ll know it when I see it,” but there’s actually more to it than that.

Child pornography is legally defined as “any visual depiction of sexually explicit conduct involving a minor.”

Those “visual depictions” can exist in different ways and in different media formats, including:

  • Physical prints or photographs;
  • Online media, such as digital photographs or recordings;
  • Videos;
  • Possibly comics, cartoons, and drawings purposefully depicting sexual situations involving minors; and
  • Undeveloped film.

Note that the age of consent does not matter to child pornography laws. If the depicted individual is under 18 years of age, then the image could be child porn – even if the person photographed agreed to it.

So, if a teenaged couple – one 19 years old and the other 17 years old – exchange nudes over text, then they could be charged with creation and distribution of child pornography. Maryland’s Romeo and Juliet legal exceptions for statutory rape do not apply to photographs of minors.

The actual act depicted also doesn’t need to be literally sex to constitute child porn. The image merely needs to be “sufficiently sexually suggestive” as to indicate the intent of the image to the viewer.

What Is NOT Legally Considered Child Porn: Some Written Content and Parent Photos

Believe it or not, writing about underage sex either between two minors or between an adult and a minor is not automatically illegal at either the state or federal level, though obscenity laws still apply.

First of all -- and speaking broadly -- it is not automatically illegal to write fictional narratives about illegal acts. Otherwise, many murder mystery publishers would be out of business!

Some online platforms even allow writers to sell such content for profit, though major publishers such as Amazon have strict rules forbidding pedophilia in its self-publishing book catalog.

To avoid censure, certain authors and illustrators of erotic written or visual novels have taken the precautionary step to explicitly state that all characters within their fictional narrative are over age 18 – even if they may initially appear younger.

Sometimes, this is accomplished through the characters mentioning their age during dialogue or by flashing an ID card to show their birth year. Some content pieces even have their characters explicitly state in a disclaimer that they’re all “of age” and simply “actors” playing a part – even though they’re completely fictional!

That said, writers have found themselves facing down obscenity charges when their writing has no "societal value" beyond simply eliciting sexual arousal and desire, and there are illegal acts in the story, such as bestiality or pedophilia. Writers should be extremely careful about writing such scenes and strive to avoid such lines whenever possible.

Finally, parents’ photos of their children are also not typically considered child pornography, as it is partially the intent of the photo in addition to the nudity of minors which makes an image pornographic.

So, you shouldn’t worry about your toddler’s cute bath pictures! Taking and sharing them with friends and family typically doesn’t merit a child pornography investigation – just embarrassment for the child when they’re older.

Consequences of Child Pornography at the Federal and Maryland State Levels

Those convicted of child pornography will have a tough row to hoe, with minimum sentences starting at literally years in prison.

Possible Federal Sentences for Child Pornography Convictions

The feds get involved whenever a crime happens over the internet, as many child pornography cases do. Therefore, even if the defendant lives in Maryland and is tried in a Maryland district court, they may have to contend with federal sentencing.

And, federal sentencing is tough. Those convicted of distribution or possession of child pornography carry a required minimum sentence of five years.

That required minimum is truly that: Required. Judges and prosecutors have no discretion when it comes to sentencing. At a minimum, the convicted defendant must go to jail for at least five years.

And, that’s just for first time offenders! Those convicted a second time face up to 40 years behind bars.

Possible Maryland State Sentences for Child Pornography Convictions

Of course, getting convicted in federal court doesn’t mean the Maryland state prosecutors can’t pile on. Possible Maryland sentences for those convicted on child pornography charges include:

  • Up to 10 years in prison for a first offense, and up to 20 years for every conviction after that;
  • Years of probation after prison;
  • Up to $50,000 in fines;
  • Permanent internet restrictions; and
  • Physical and digital forms of monitoring, such as ankle monitors and enrollment on Maryland’s Sex Offender Registry.

Just because someone is charged with child pornography creation, possession, and distribution does not automatically make someone guilty, though.

If you or someone you know may be facing a child pornography investigation, then speak with an experienced criminal defense attorney who has experience fighting back against these sorts of accusations.

Time is not on their side. The sooner they have a champion, the better an outcome they may have.

[CHECKLIST] If you need a criminal defense lawyer in Maryland, learn the 8 questions you must ask before retaining.