Crimes involving child pornography, found in the prohibition against "Endangering the Welfare of Children," can lead to significant penalties for offenders in the "Garden State."
Recently, a Branchburg man was found to be in possession of child pornography after undercover officers located downloaded files of children under the age of 16 engaged in prohibited sexual acts at his home in N.J. As a result, he was charged with second and fourth-degree endangering the welfare of a child. This article will examine these offenses in both levels of proof and punishment.
Endangering the Welfare of Children: Proving the Offense
In order to convict an individual of Endangering the Welfare of a Child in cases of child pornography, the State must prove beyond a reasonable doubt:
- The defendant knowingly caused or permitted a child to engage in prohibited sexual act or in the simulation of such an act; and
- The defendant knew, had reason to know or intended that the prohibited act was to be photographed, filmed, reproduced or reconstructed in any manner or could be part of an exhibition or performance.
The First Element
The first element of the offense requires the State to prove beyond a reasonable doubt that defendant knowingly caused or permitted a child to engage in a sexually prohibited act or in a simulation thereof. Regarding this offense, a child means anyone under the age of 16. Therefore, the State must demonstrate that the child was under the age of 16 during the time of the offense. It is important to note that a defendant's knowledge of the victim's age is irrelevant. Therefore, it is not a defense that the defendant believed the child was older than 16 or that he didn't know the child was under 16, even if such a belief is considered reasonable.
A prohibited sexual act encompasses most all sexually related activities. This term includes sexual intercourse; anal intercourse; masturbation; bestiality; sadism; masochism; fellatio; cunnilingus; and nudity, if it is depicted for the purpose of sexual stimulation or gratification of any person who may view such a depiction. Additionally, an individual can be found to have engaged in a prohibited sexual act if he instructed another to commit any of the aforementioned sexual activities. Thus, one who directs child pornography may be found guilty.
Furthermore, the first element of the offense requires a knowing state of mind attributed to the defendant. By definition, a person acts knowingly with respect to the nature of his conduct if he is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he is aware that it is practically certain that the conduct will cause a result. As a result, if the State can prove a defendant is aware that he is making a child engage in a prohibited sexual act, the first element of the offense is satisfied.
The Second Element
The second element that the State must prove beyond a reasonable doubt is that defendant knew, had reason to know or intended that the prohibited act might be photographed, filmed, reproduced, or reconstructed in any manner or might be part of an exhibition or performance.
The same definition of knowledge listed above also applies to this element of the offense. In addition to the mental state of knowledge, a person can also be found mentally culpable if a reasonable person in his situation would have known that he was engaging in the offense. Clearly, the defendant can also be found liable if he specifically intends to engage in child pornography. Thus, if defendant, at minimum, should have known that a prohibited sexual act he filmed was going to be distributed, he is criminally liable under this second element.
Once the prosecution has proven both of these elements beyond a reasonable doubt, a defendant will be found guilty of endangering the welfare of a child due to their involvement with child pornography. The punishment, however, depends under what degree of the crime that the individual is convicted. As explained in the section on punishment that follows, that degree depends on several dynamics.
Endangering the Welfare of Children: Punishing the Offense
Factors to consider when determining punishment for child pornography include the relationship between the defendant and the victim, and the acts charged.
The statute criminalizing child pornography establishes that relationship between the guilty party and the victim should be considered in the grading of the offense. If the person who causes or permits a child to engage in child pornography is a parent, guardian or other person legally charged with the care or custody of that child, that person is guilty of a crime in the first degree. In New Jersey, a crime in the first degree is accompanied by a presumption that jail time must be served with a sentence in the range of ten (10) to twenty (20) years. If the individual is not a parent or guardian, this offense constitutes a crime of the second degree. On a second degree crime, there is also a presumption of incarceration with a sentence of jail time in the range of five (5) to ten (10) years.
In addition to the relationship between the offender and victim, the level of conduct perpetrated by the convicted must also be evaluated. The individual who manufactures or distributes the pornographic material under this statute is properly charged with a crime of the second degree. Manufacture of child pornography includes photographing, filming, reproducing, or reconstructing the materials in any manner, including on the internet or as part of an exhibition or performance. Distribution can include sales, deliveries, transfers, advertisements, and other offers. If an offender is shown only to view or be in possession of child pornography, they should be properly charged with the crime in the fourth degree. A crime in the fourth degree does not have a presumption of incarceration which means that jail time may be suspended by a judge who would instead propose probation. Fourth degree crimes are accompanied by a jail time sentence of one (1) to one and a half (1.5) years. In addition to the above penalties, a guilty individual must pay heavy fines and also register with the Megan's Law sex offender registry.
New Jersey's stance against child pornography is strong. Strict liability regarding the victim's age, the relatively low mental state required to be found culpable, and the factors involved in the grading of the offense indicate that the state seeks to stalwartly defend the rights of children. One facing charges of endangering the welfare of children resulting from pornography faces considerable exposure in the criminal justice system and should act accordingly. If you have been charged with offenses related to child pornography or learn that you are the target of an investigation, contact an experienced criminal defense attorney as soon as possible.