Under Georgia law, the charge sexual exploitation of a child (O.C.G.A. § 16-12-100) involves allegations that a person has coerced or used a minor under the age of 18 to participate in conduct of a sexual nature for the purpose of creating a visual representation of that conduct, such as photographs, videos, movies, and the like. It also makes it illegal for any person to distribute, sell or possess these types of materials.
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We have successfully represented clients in serious criminal cases across the United States. Our firm has offices in Atlanta GA and Brunswick GA, and we frequently travel to other courts across the state to represent people in serious criminal cases.
Sexual exploitation of a child charges generally arise in four types of situations:
- a person actually engages in sexual conduct with a minor or helps someone else engage in sexual conduct with a minor with the intent to create some sort of photo, video or performance of the sexual conduct;
- a parent or legal guardian of a minor knowingly allows the child to engage in sexually explicit conduct if the purpose is to create a video, photo or performance with or of the minor;
- a person creates, distributes or advertises for sale photos, videos, or other visual depictions of a child engaging in sexual conduct or a part of a child’s body involved in that conduct; and
- a person possesses photos, videos, etc. of a minor or part of a minor’s body participating in sexually explicit conduct.
What is “sexually explicit conduct?” The statute covers a wide variety of sexual conduct in addition to what most people probably think of when they hear those words such as intercourse and oral sex. Sexually explicit conduct under O.C.G.A. § 16-12-100(a)(4) also includes masturbation, exposing a minor’s genitals, and being physically restrained while naked, among others.
It is important to note that in this context, a minor means someone 17 years of age or younger. This can be confusing because under Georgia law, the age of consent—the age someone can legally have sex—is 16 years old. So is it illegal if two 16 year old’s have sex and record a video on one of their iPhones of the encounter? Technically, yes, it is illegal and the person whose phone the video was recorded on could be prosecuted. The only “exception” to this rule is if the visual medium created or possessed depicts only the minor him or herself engaged in sexual conduct.
In today’s technology driven world, most sexual exploitation charges will involve the use of a computer or smartphone and the internet. The way the government uses the internet to investigate people they think may have committed sexual exploitation of a child can be rather complicated to explain unless you are tech-savvy. In its simplest terms, the government has tools they can use to trace a person’s IP address when they use the internet to look at, download, upload, or chat about materials that may involve sexual exploitation of children. Once police have the IP address, they can figure out what internet service provider (such as Comcast, AT&T, Charter, etc.) is associated with that IP address. Police then subpoena the internet service provider to see which customer is assigned that IP address. After that, police generally get a search warrant to search and seize electronic devices at the customer’s address. Police have special tools to analyze the seized devices and perform what is called a forensic analysis or forensic examination. It allows them to see virtually everything ever done on that computer. This includes search history, download history, websites visited, and so much more. Even things that the user may have thought they deleted can usually still be found.
Punishment for violation of O.C.G.A. § 16-12-100 differs based on the nature of the offense and a variety of other factors. In general, a person convicted of sexual exploitation of children is guilty of a felony and can be imprisoned for 5 to 20 years, fined up to $100,000 or both, unless the person convicted is a member of the victim’s immediate family, in which case there is no fine. The person convicted will also be required to register as a sex offender.
There are two situations where a person can be charged with and punished for a misdemeanor:
- If a person is in the business of processing photos (such as a film developer) and finds what may be a minor engaged in sexually explicit conduct during the course of processing the film, the person is required to notify the GBI or local police. If they do not report it, they can be convicted of a misdemeanor.
- If the minor depicted in a film, photograph, etc. was at least 14 years old at the time it was created, the visual was created with the minor’s permission, the defendant was 18 years of age or younger at the time of the offense, and either (a) the defendant did not distribute the material to anyone else or (b) if the defendant did distribute the material but the court, prosecutor, and defendant all agree that distribution of the material to another was not for the purpose of harassing, intimidating, or embarrassing the minor depicted and was not for any commercial purpose, the defendant is guilty of a misdemeanor.
There are several defenses to sexual exploitation of children charges. The first three are provided for in the statute (O.C.G.A. § 16-12-100(d)) while the others are based on the evidence. These include:
- Investigating and prosecuting is not a criminal offense. The activities of law enforcement and prosecutors in the investigation and prosecution of criminal offenses involving sexual exploitation of children is not considered violating the law. What this means is that when detectives and prosecutors have images or content on their work devices that may be considered sexual exploitation of a minor material, so long as that content was obtained and is being used solely for the purpose of investigating an individual, it is not a crime.
- Images or materials are being used for education-related purposes. Materials depicting what may otherwise be considered sexually explicit images of minors are not illegal if they are being used for legitimate medical, scientific, or educational activities. For example, an image or video of an underage female’s vaginal opening may be shown by a professor to his students in medical school for the purposes of understanding anatomy, diseases, or abnormalities. In this context, the professor has not committed a crime by possessing this content and showing it to his students because it is being done for educational purposes.
- A person, including a minor, who creates or possesses a visual of himself or herself engaging in sexually explicit conduct. Creating the visual itself is not a crime so long as the visual is not shared with anyone else and does not involve anyone else. If a teen creates a video of himself or herself masturbating alone and does not share it with anyone, no crime has been committed. But if the teen shares it on the internet or otherwise disseminates it, he or she has committed a criminal offense and can be charged.
- The images did not belong to accused. This defense may be used in the limited circumstances where there is a single computer used by multiple people. For example, if four college roommates lived in a house with a single computer they all shared, it may be difficult to prove which one downloaded the sexually explicit material. However, this defense likely would not work for a single parent living with his or her two children who are both under the age of 8 because children of that age likely do not have the knowledge or criminal intent that an adult parent may.
- The evidence was obtained illegally. If the police did not get a search warrant to search for electronic devices, to seize the electronic devices or to search the contents of the electronic device itself, and the person whom the device belonged to did not consent to the search or seizure, the evidence may be suppressed by the court.
- The person shown in the visual medium was not a minor. While this is generally a very difficult defense to prove, if there is some evidence that, at the time a photo or video was captured, the person depicted was 18 years of age or older, the accused cannot be convicted of sexual exploitation of a minor.
When defending someone accused of sexual exploitation in Georgia, our firm usually retains computer forensic experts, investigators and sometime medical experts to review the evidence and assist our clients in preparing a solid defense.
Our defense attorneys have helped clients successfully resolve serious sexual exploitation cases. We have also helped some of our clients avoid charges completely when we were able to convince prosecutors that evidence was insufficient to bring criminal charges.
If you or someone you know has been charged with sexual exploitation in Georgia, contact us to see if we may be able to help. The earlier we can start preparing a defense to these serious charges, the more likely it is we can help someone avoid a wrongful conviction.
