Answers to Frequently Asked Questions About Child Pornography
Sex Crimes Defense Lawyer Serving Cook, DeKalb, DuPage, Kane, Kankakee, Kendall, LaSalle, Lee, Ogle, and Will Counties
Have you or a loved one been charged with Child Pornography in Illinois? You should know that it is a crime to both create and possess it. Possession includes both having child porn on things you physically own (i.e., a computer or cell phone, and having it stored in your cloud storage, (i.e., Dropbox or Google Drive). Even if you have never had inappropriate contact with a minor, just the allegation of being charged with child pornography can affect your reputation and relationship with loved ones. Furthermore, this is a very serious offense that involves a very lengthy prison sentence. Now is not the time for the “discount lawyer” who primary does real estate closings. You need an experienced criminal defense lawyer who specifically handles sex cases. Call Attorney Clyde Guilamo today for a free consultation. Clyde Guilamo is a former prosecutor with over 10 years of criminal law experience, and he is ready to protect your freedom.
Comprehensive Guide to Illinois Child Pornography – 720 ILCS 5/11-20.1
Child Pornography or Child Porn is a general term that covers much more than just photos or videos of minors having sex. In Illinois, it could include depictions of children masturbating, urination, or posing naked. Here is a comprehensive guide about violations of the Illinois’ Child Pornography Statute (720 ILCS 5/11-20.1):
PRACTICE AREAS
- Aggravated Discharge of a Firearm
- Aggravated Unlawful Use of A Weapon
- Armed Habitual Criminal
- Armed Violence
- Burglary
- Child Pornography
- Criminal Sexual Abuse
- Criminal Sexual Assault
- Domestic Battery
- Drug Delivery Cases
- Drug Induced Homicide
- Drug Possession Cases
- Gun Cases
- Non-consensual Dissemination of Private Sexual Images
- Possession of a Stolen Motor Vehicle Cases
- Rape/Sexual Assault Cases
- Residential Burglary
- Theft Cases
- Traffic/DUI Offenses
- Violent Crime Cases
Table of Contents
What Is Child Pornography?
In Illinois, there are 7 different ways to be charged with the crime of child pornography. Under 720 ILCS 5/11-20.1, it states that “a person commits child pornography who:
- films, videotapes, photographs, or otherwise depicts or portrays by means of any similar visual medium or reproduction or depicts by computer any child whom he or she knows or reasonably should know to be under the age of 18 or any person with a severe or profound intellectual disability where such child or person with a severe or profound intellectual disability is:
- (i) actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or animal; or
- (ii) actually or by simulation engaged in any act of sexual penetration or sexual conduct involving the sex organs of the child or person with a severe or profound intellectual disability and the mouth, anus, or sex organs of another person or animal; or which involves the mouth, anus or sex organs of the child or person with a severe or profound intellectual disability and the sex organs of another person or animal; or
- (iii) actually or by simulation engaged in any act of masturbation; or
- (iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or
- (v) actually or by simulation engaged in any act of excretion or urination within a sexual context; or
- (vi) actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or
- (vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child or other person; or
- with the knowledge of the nature or content thereof, reproduces, disseminates, offers to disseminate, exhibits or possesses with intent to disseminate any film, videotape, photograph or other similar visual reproduction or depiction by computer of any child or person with a severe or profound intellectual disability whom the person knows or reasonably should know to be under the age of 18 or to be a person with a severe or profound intellectual disability, engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or
- with knowledge of the subject matter or theme thereof, produces any stage play, live performance, film, videotape or other similar visual portrayal or depiction by computer which includes a child whom the person knows or reasonably should know to be under the age of 18 or a person with a severe or profound intellectual disability engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or
- solicits, uses, persuades, induces, entices, or coerces any child whom he or she knows or reasonably should know to be under the age of 18 or a person with a severe or profound intellectual disability to appear in any stage play, live presentation, film, videotape, photograph or other similar visual reproduction or depiction by computer in which the child or person with a severe or profound intellectual disability is or will be depicted, actually or by simulation, in any act, pose or setting described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or
- is a parent, step-parent, legal guardian or other person having care or custody of a child whom the person knows or reasonably should know to be under the age of 18 or a person with a severe or profound intellectual disability and who knowingly permits, induces, promotes, or arranges for such child or person with a severe or profound intellectual disability to appear in any stage play, live performance, film, videotape, photograph or other similar visual presentation, portrayal or simulation or depiction by computer of any act or activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or
- with knowledge of the nature or content thereof, possesses any film, videotape, photograph or other similar visual reproduction or depiction by computer of any child or person with a severe or profound intellectual disability whom the person knows or reasonably should know to be under the age of 18 or to be a person with a severe or profound intellectual disability, engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or
- solicits, or knowingly uses, persuades, induces, entices, or coerces, a person to provide a child under the age of 18 or a person with a severe or profound intellectual disability to appear in any videotape, photograph, film, stage play, live presentation, or other similar visual reproduction or depiction by computer in which the child or person with a severe or profound intellectual disability will be depicted, actually or by simulation, in any act, pose, or setting described in subparagraphs (i) through (vii) of paragraph (1) of this subsection.”
What is the definition of “Sexual Penetration”?
“Sexual penetration” means any contact, however slight, between the sex organ or anus of one person and an object or the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. 720 ILCS 5/11-0.1.
What is the definition of “Sexual Conduct”?
“Sexual conduct” means any knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the accused upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or the accused. 720 ILCS 5/11-0.1.
Can the State charge me if I am a teenager and the image is of my girlfriend that she freely gave to me?
Yes! There is no exception to the law for teenagers. Sexting between teens can result in a charge of child pornography. No one, including minors, can possess child pornography in the State of Illinois. 720 ILCS 5/11-20.1.
Will I have to register as a Sex Offender?
Yes, you must registration as a sex offender if convicted of child pornography. 730 ILCS 150/2.
How long will I have to register as a sex offender?
Your entire life! The law states that “a sexual predator (which includes people who were convicted of child pornography) shall register for the period of his or her natural life after conviction … if not confined to a penal institution, hospital, or other institution or facility, and if confined, for the period of his or her natural life after parole, discharge, or release from any such facility.” 730 ILCS 150/7.
Do I need a lawyer?
Yes, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people. Especially with offenses like this one that involves a mandatory prison sentence.
What should I know if the police are investigating me?
Police primarily use search warrants in these cases. A search warrant is essentially permission from a court to access your private property. That could include access to your physical property (i.e., your home or car), but also to your electronic storage locations (i.e., hard drives, Drop Box, iCloud, and/or Google Drive). If you found this Child Pornography guide by search for it on your phone or computer, yikes!!! Police can get search warrants to see your computer or phone’s browsing history. Although people may find this guide for a variety of reasons (i.e. a google search after watching something in the news/show, clicking around in my website, and/or educational purposes), cynical people will always expect the worst.
Another tool that police use to get evidence of this crime is data sharing. Essentially, police ask you to send them the pornography images or video in your possession. If you are using a sharing platform (i.e. Ares, Napster, Kazaa, Morpheus, BearShare and Gnutella), then they would have access to your shared folder. But if you are on a pornography trading site, and someone is asking you to provide them with child pornography, then you might be talking to a police officer. If they can get you to send them the child pornography, then they can charge you with the additional crime of dissemination of child pornography (which is non-probationable). As with any ongoing criminal investigation, you have the right to a lawyer and the right to remain silent. DO NOT TALK TO ANYONE about an ongoing criminal investigation. #commonsense; #notlegaladvice.
Is this crime a misdemeanor or a felony?
Child Pornography is a felony. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/11-1.20.
What level of felony is Child Pornography?
Child Pornography can be a class X, 1, 2 or 3 felony depending on the circumstances (i.e., did you create or just possess the Child Porn, is it a movie or picture, and is the child depicted under or over 13 years of age). The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. To best explain the circumstances, here is a chart explaining the sentencing range for Child Pornography in Illinois. 720 ILCS 5/11-1.20(b)(1)(A).
| Subsection | Video/Picture | Age of Child | Class | Fine |
|---|---|---|---|---|
| 720 ILCS 5/11-20.1(a)(1) | Picture | 13 to 17 | 1 Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(1) | Video | 13 to 17 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(1) | Picture/Video | Under 13 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(2) | Picture | 13 to 17 | 1 Felony | $1k to $100k |
| 720 ILCS 5/11-20.1(a)(2) | Video | 13 to 17 | X Felony | $1k to $100k |
| 720 ILCS 5/11-20.1(a)(2) | Picture/Video | Under 13 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(3) | Picture | 13 to 17 | 1 Felony | $1.5k to $100k |
| 720 ILCS 5/11-20.1(a)(3) | Video | 13 to 17 | X Felony | $1.5k to $100k |
| 720 ILCS 5/11-20.1(a)(3) | Picture/Video | Under 13 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(4) | Picture | 13 to 17 | 1 Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(4) | Video | 13 to 17 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(4) | Picture/Video | Under 13 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(5) | Picture | 13 to 17 | 1 Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(5) | Video | 13 to 17 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(5) | Picture/Video | Under 13 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(6) | Picture | 13 to 17 | 3 Felony | $1k to $100k |
| 720 ILCS 5/11-20.1(a)(6) | Video | 13 to 17 | 2 Felony | $1k to $100k |
| 720 ILCS 5/11-20.1(a)(6) | Picture/Video | Under 13 | 2 Felony | $1k to $100k |
| 720 ILCS 5/11-20.1(a)(7) | Picture | 13 to 17 | 1 Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(7) | Video | 13 to 17 | X Felony | $2k to $100k |
| 720 ILCS 5/11-20.1(a)(7) | Picture/Video | Under 13 | X Felony | $2k to $100k |
Can I get probation or is prison mandatory (Non-Probationable)?
In many cases, a person charged with Child Pornography is not eligible for probation because you are either:
- charged as a class X felony 730 ILCS 5/5-5-3(c)(2)(C); or
- charged under subsections (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), or (a)(7) of Child Pornography. 730 ILCS 5/5-5-3(c)(2)(P).
Only some violations under subsection (a)(6) are probationable. For example, if you have any one of these sex offenses in your background:
- child pornography,
- aggravated child pornography,
- aggravated criminal sexual abuse,
- aggravated criminal sexual assault, or
- predatory criminal sexual assault of a child)
And the victim in that prior case was under the age of 18 years, then child pornography under (a)(6) would be a non-probationable class 1 felony. 730 ILCS 5/5-5-3(c)(2)(V). In summary, you might be eligible for probation for a class 3 or 2 felony of child pornography under subsection (a)(6), but you must consult with an experienced sex crimes lawyer.
Can I get court supervision?
No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).
Can I go to Prison? What is the sentencing range?
Yes. Generally, Child Pornography is a Class X Felony punishable by 6 to 30 years in the Illinois Department of Corrections. However, if the State charged you with the:
- Class 1 version, then your sentence would be 4 to 15 years IDOC;
- Class 2 version, then your sentence would be 3 to 7 years IDOC; or
- Class 3 version, then your sentence would be 2 to 5 years IDOC.
How does having multiple pictures or videos affect your prison sentence?
The possession of each individual film, videotape, photograph, or other similar visual reproduction or depiction by computer … constitutes a single and separate violation. 720 ILCS 5/11-20.1(a-5). Furthermore, each conviction must run consecutively. 730 ILCS 5/5-8-4(d)(2.5). Thus, if you have 10 different videos, and get a minimum sentence on a class X offense of 6 years on each video, 10 x 6 = 60 years in the Illinois Department of Corrections.
(This does not apply to multiple copies of the same film, videotape, photograph, or other similar visual reproduction or depiction by computer that are identical to each other 720 ILCS 5/11-20.1(a-5)).
What is the Extended Sentencing Range and when does it apply 730 ILCS 5/5-4.5-30(a)?
Under Illinois’ extended sentencing guidelines, if you have been convicted in the last 10 years of a felony, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. 730 ILCS 5/5-5-3.2(b). That means that the extended sentencing range for a class 3 felony Child Porn case would be 5 to 10, for a class 2 felony would be 7 to 14, for a class 1 felony would be 15 to 30, and for a class X felony would be 30 to 60 years in the Illinois Department of Corrections.
What is my Sentencing Range if I have a prior sex case?
If you have any one of these priors sex offenses in your background (child pornography, aggravated child pornography, aggravated criminal sexual abuse, aggravated criminal sexual assault, or predatory criminal sexual assault of a child), and the victim in that prior case was under the age of 18 years, then your current charge of Child Pornography under subsections (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), or (a)(7), will be a Class X Felony with a minimum sentence of 9 years in the Illinois Department of Corrections. If you are currently charged with Child Pornography under (a)(6), then it is a Class 1 Felony with a mandatory fine of $1k to $100k. This would be a non-probationable class 1 felony. 730 ILCS 5/5-5-3(c)(2)(V).
What percentage of your sentence do you serve for Child Pornography?
Child Pornography is a 50% sentence. Illinois Truth-In-Sentencing law states: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received the imprisonment term of 6 year in the Illinois Department of Corrections, the most you would actually serve is 3 years assuming you do not receive any other credits.
How long is the Mandatory Supervised Release or Parole Period?
For Child Pornography cases, a person sentenced to the Illinois Department of Corrections can have a mandatory supervised release period of from 12 months on the short end, to natural life on the long end. See 730 ILCS 5/5-8-1(d).
How to keep a Child Pornography case off your record?
There are several ways to keep a conviction for this offense off your criminal record. Here are some of the ways:
How to win at trial?
Challenge that you “possessed” the contraband. Every day, computer hackers access and store unwanted items on people’s computers. They could use your computer as a storage location of contraband, without you knowing. If you are the victim of some kind of spyware or hack, you might not know that these items are being stored on your computer. Possession must be “knowing” possession.
Another situation occurs when you are accessing an adult porn website and happen to see an image or video of a minor that should have been flagged and removed by the website. Computers sometime save portions of websites that you have recently visited to allow those items to load more quickly if you return to that site. That data, which is sometimes referred to as cached, cookies, or thumbnails, are stored on your computer without your knowledge. This is once again not knowing possession.
Lastly, a home computer could be accessed by multiple persons who live or have visited the home, not just the person charged with the crime. If multiple teenagers, and/or their friends, having been using the computer, the question of whether you knowingly possessed the contraband on the computer becomes unclear.
Challenge the person’s age in the picture/video. If the State offered no birth certificate of the individual in the video or photo, then the age of the person may become a really big issue. Many things affect the physical development of a person, including genetics, nutrition and other environmental factors. People come in all shapes and sizes, and assuming that someone is a specific age because of a physical trait can be full of errors. It is the State’s burden to prove the age of the person in the depiction beyond a reasonable doubt.
How to win at motion?
If the police did not obtain a search warrant, or relied on false information to obtain a warrant, then a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of the search. If the Court finds that the recovery of the contraband was bad, the Court can prevent the State from using what was recovered from the bad search as evidence. This could result in a dismissal of your case.
How to keep a Child Pornography conviction off your record through a plea agreement (Reduction on the Charge)?
Although rare, prosecutors sometimes clear backlogs and move cases by giving defendants “a bargain.” For example, a reduction from Child Pornography to probation on the crime of Obscenity or non-consensual dissemination of private sexual images are very good dispositions.
Super-Secret Info: Although non-consensual dissemination of private sexual images is still a felony, it does not require registration on the sex offender registry. This is a good disposition on teen sexting cases.
Other Sexual Crime Guides
If you are looking for information about:
- Criminal Sexual Assault, then check out our guide to Criminal Sexual Assault cases in Illinois.
- Aggravated Criminal Sexual Assault, then check out our guide to Aggravated Criminal Sexual Assault cases in Illinois.
- Predatory Criminal Sexual Assault of a Child, then check out our guide to Predatory Criminal Sexual Assault cases in Illinois.
- Non-consensual Dissemination of Private Sexual Images, then check out our guide to Non-consensual Dissemination of Private Sexual Images cases in Illinois.
- Criminal Sexual Abuse, then check out our guide to Criminal Sexual Abuse cases in Illinois.
- Aggravated Criminal Sexual Abuse, then check out our guide to Aggravated Criminal Sexual Abuse cases in Illinois.
Hire Illinois Sex Crimes Defense Attorney Clyde Guilamo
Lastly, I hope this guide of free legal education was helpful. #notlegaladvice. If you found this article helpful, then leave us a review on Google! And if you have specific questions about your case, give me a call.
