Taking and exchanging nude images is a pretty common occurrence in today's society. It is usually seen as an act of romantic interaction and/or self-expression. First of all, sexual/romantic partners send indecent images and videos of themselves or their partners as a form of romantic expression. This is often referred to as ‘Sexting'. It is said to keep the intimacy between the couple by providing suggestive messages intended to provoke sexual responses. The second most common reason behind taking nude pictures is self-expression, by expressing one's self he/she is creating art. Art is relative; it can be seen in a wide variety of ways; one of these is through physical expression. This can be made or performed in many ways, including nudity. Either the subject or the artist is nude during the process of creating the art or as reflected in the final piece. This is, though still taboo and not accepted by everyone, generally normal. However, when a minor is involved in the process, especially in a sexually exploitative manner, it becomes a criminal offense. In the state of California, under the California Penal Code 228, it is a crime to partake in an exchange of nude or lewd images and recordings of and with a minor under the age of 18 while; consequently, possession of such materials as mentioned earlier is a violation against California's Child Pornography Laws, California Penal Code 311. These statutes are set to protect these minors from being exploited and used as materials for satisfying sexual desires.
This statute states that a person who willfully and lewdly participated to any act of lasciviousness towards a someone who is a minor (anyone under the legal age of consent) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, can be charged, tried, and criminalized under the rule of law.
This statute states that being in possession of materials that shows a minor naked or engaged in erotic acts intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person can be charged, tried and criminalized under the rule of law.
These laws also cover the sending, receiving, transporting, reproducing, duplicating and distribution of the explicit materials involving a minor. A Consent from the subject who is a minor to possess and distribute the materials is not a valid justification in the eye of the law. However, the accused can use the reason that he/she did not know the nature of the material he/she is handling and had no idea that the subjects of the content would be minors.
Other Related Laws
- PC 273a – Child Endangerment
- PC 647j4 – Sexting Laws
Punishments for Breaking California Penal Codes 288 and 311
Offenders caught committing sexual indecencies with minors are charged according to the significance of their involvement in the act itself. A misdemeanor is a crime that usually comes with a sentence that lasts 365 days or less in county jail; it is more severe than an infraction but less severe than a felony. The punishment includes:
- Registered as a Sex Offender,
- Jail time of 6 (six) months up to a year, and/or,
- A fine of up to $1,000 (one thousand dollars) or more.
However, the level of severity increases from misdemeanor if the accused is involved in more severe situations. If that ever becomes the case, the penalty can become a felony instead of a misdemeanor. A felony is a crime that usually comes with a sentence of more than 365 days in state prison. The punishment includes:
- Registered as a Sex Offender,
- Jail time of 16 (sixteen) months up to 3 (three) years or more, and/or,
- A fine of up to $10,000 (ten thousand dollars) or more.
Being convicted and charged of violating California's Child Pornography Laws can severely tarnish a person's records. A quick background check on a person will reveal their sexual misconduct and this information can give them a hard time when applying for civil or social privileges. It can also greatly affect their chances of employment because employers tend to not hire people with sexual offenses because these people can damage the entire workforce. Because of these reasons, it would be the accused's great interest to hire the assistance of a competent defense lawyer to defend their case. A good attorney can use the following conditions to lessen, if not totally clear, the possible charges:
- The accused did not possess any obscene materials of a minor
- The accused did not act intentionally
Defense specifically for PC 311
The accused If you or anyone you know ever had the misfortune of being a victim of illegal search and seizure or entrapment, or wrongfully accused of committing sexual misconduct on a minor, it would be beneficial for your party to seek professional help from our credible roster of criminal defense lawyers.
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