Possession of Material Including Sexual Conduct by a Child - Florida Statute 827.071(5)

sex offenses

Florida Statute 827.071 makes it a crime to authorize, induce, consent, promote, sexual conduct by a child. This also includes possessing any type of material which shows sexual conduct by a child.

This crime is basically possession of child pornography but the child is involved in sexual conduct. A person cannot be convicted for this crime if the material is only of a young girl underdressing and showering. See Lockwood v. State , 588 So. 2d 57, 58 (Fla. 4th DCA 1991).

One scenario where people can get into trouble is where you have two 16 year olds who want to video record their sex. They have just committed this crime because now they have just recorded their boyfriend or girlfriend having sex. There are a couple of ways the information about the boy possessing the videos could get to the police: the girlfriend became jealous and turned him in, she became vindictive after a nasty breakup, or somebody’s parents discovered the video.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant knowingly possessed a photograph, motion picture, exhibition, show, representation, or presentation;

(2) The photograph, motion picture, exhibition, show, representation, presentation included, in whole or in part, sexual conduct by a child less than 18 years of age; and

(3) The defendant knew that the photograph, motion picture, exhibition, show, representation, or presentation included sexual conduct by a child less than 18 years of age.

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Defenses

One defense is that you did not know what the material was. For example, a person who was cleaning out a bunch of CDs and DVDs left over after their tenant left the apartment cannot be charged with this crime because he did not knowingly possess the material.

Punishment

This crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine.

Consequences

Anyone convicted of this crime will be designated a sexual offender. They will be required to initially register their personal information with the Florida Department of Law Enforcement and continually update that information if anything changes. The offenders will also be listed on the Florida Department of Law Enforcement’s website for the public to search.

Finding a job will be very difficult because this will come up in background searches. To make things even worse, a conviction for this crime cannot be expunged.

Contact the Law Office of Roger P. Foley, P.A.

If you have been arrested and charged with this crime, call our offices to schedule a free consultation. We need to hear your version of the story so we can start investigating your case. We will take depositions of the officers and anyone involved. From this information, we will create a defense strategy to your case. We will fight your case all the way to trial, if needed. Call us today so we can start immediately.

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