Child Pornography Crimes under MCA 45-5-625

Cases involving child pornography can be prosecuted in state or federal court. In child pornography cases, prosecutors are on a mission to fight violent offenders and end child victimization. Child exploitation through the possession of child pornography is an ongoing problem in Montana. Many of these cases involve teenagers sexting naked pictures to each other.

More serious crimes involve an adult possessing child pornography involving young children. In many of these cases involving an adult, the images are downloaded on peer-to-peer computer file sharing network or file sharing websites.

For cases that occur in Lewis & Clark County, they are often prosecuted by the Lewis & Clark County District Court. In many of these cases, law enforcement officers used sting operations targeting online bulletin boards where sexually explicit material of children, many under 12, are traded and viewed. The sting operation targets traffickers and producers of the illegal images and videos. 

Many of the cases charged as "sexual abuse of children" involve being in possession of child pornography. Some of the cases are triggered by investigations by detectives on the Internet Crimes Against Children (ICAC) task force who received a tip from the National Center for Missing & Exploited Children. 

After the initial investigation, law enforcement officers will often obtain a search warrant to seize computers and hard drives while searching the suspect's home and place of business. An evidence technician will then search the hard copies of incriminating images to perform a forensic analysis of computers seized. In many of these search and seizure operations, the officer will recover child pornography images.

If you were arrested for a child pornography related crime in Montana, then contact an experienced criminal defense attorney at Beebe Law Firm in Helena in Lewis and Clark County, Montana. Greg Beebe also represents clients in Boulder and Jefferson County and the surrounding areas in Montana. 


Child Pornography Crimes under MCA 45-5-625

Under MCA 45-5-625(1), a person commits the offense of sexual abuse of children if the person:

  1. knowingly coerces, entices, persuades, arranges for, or facilitates a child under 16 years of age or a person the offender believes to be a child under 16 years of age to travel within, from, or to this state with the intention of engaging in sexual conduct, actual or simulated.
  2. knowingly travels within, from, or to this state with the intention of meeting a child under 16 years of age or a person the offender believes to be a child under 16 years of age in order to engage in sexual conduct, actual or simulated; or
  3. possesses with intent to sell any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated;
  4. finances any of the activities described in subsections (1)(a) through (1)(d) and (1)(g), knowing that the activity is of the nature described in those subsections;
  5. knowingly possesses any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated;
  6. knowingly processes, develops, prints, publishes, transports, distributes, sells, exhibits, or advertises any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated;
  7. knowingly, by any means of communication, including electronic communication, persuades, entices, counsels, or procures a child under 16 years of age or a person the offender believes to be a child under 16 years of age to engage in sexual conduct, actual or simulated;
  8. knowingly photographs, films, videotapes, develops or duplicates the photographs, films, or videotapes, or records a child engaging in sexual conduct, actual or simulated; or 
  9. knowingly employs, uses, or permits the employment or use of a child in an exhibition of sexual conduct, actual or simulated. 

Penalties and Punishment for Sexual Abuse of Children 

A person convicted of the offense of sexual abuse of children is subjected to a potential penalty or punishment of life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years and may be fined not more than $10,000.

If the victim is under 16 years of age, a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $10,000.

If the person is convicted of the offense of sexual abuse of children for the possession of material, as provided in subsection (1)(e), shall be fined not to exceed $10,000 or be imprisoned in the state prison for a term not to exceed 10 years or both.


Defenses to Sexual Abuse of Children 

It is a defense to the charge of sexual abuse of children if the visual or print medium is processed, developed, printed, published, transported, distributed, sold, possessed, or possessed with intent to sell, or if the activity is financed, as part of a sexual offender information or treatment course or program conducted or approved by the Montana department of corrections.


Penalties for Sexual Abuse of Children 

If the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense, the offender:

  1. shall be punished by imprisonment in a state prison for a term of 100 years. The court may not suspend execution or defer imposition of the first 25 years of a sentence of imprisonment imposed under this subsection (4)(a)(i) except as provided in 46-18-222, and during the first 25 years of imprisonment, the offender is not eligible for parole.
  2. may be fined an amount not to exceed $50,000; and
  3. shall be ordered to enroll in and successfully complete the educational phase and the cognitive and behavioral phase of a sexual offender treatment program provided or approved by the department of corrections.

If the offender is released after the mandatory minimum period of imprisonment, the offender is subject to supervision by the department of corrections for the remainder of the offender's life and shall participate in the program for continuous, satellite-based monitoring provided for in 46-23-1010.


Definitions under Montana’s Child Pornography Statute

The term “simulated” means any depicting of the genitals or pubic or rectal area that gives the appearance of sexual conduct or incipient sexual conduct.

The term “electronic communication” means a sign, signal, writing, image, sound, data, or intelligence of any nature transmitted or created in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

The term “visual medium” means:

  1. any disk, diskette, or other physical media that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or another method; or
  2. any film, photograph, videotape, negative, slide, or photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

The term “sexual conduct” means:

  1. the depiction of a child in the nude or a state of partial undress with the purpose to abuse, humiliate, harass, or degrade the child or to arouse or gratify the person's sexual response or desire or the sexual response or desire of any person.
  2. an actual or simulated act of sexual conduct including:
    • lewd exhibition of the genitals, breasts, pubic or rectal area, or other intimate parts of any person;
    • masturbation;
    • sexual intercourse, whether between persons of the same or opposite sex;
    • penetration of the vagina or rectum by any object, except when done as part of a recognized medical procedure;
    • sadomasochistic abuse;
    • defecation or urination for the purpose of the sexual stimulation of the viewer; or
    • bestiality. 

What if a Child Possesses an Image of Another Nake Child?

Recently, prosecutors have started to prosecute crimes for one child possessing a nude picture by an underage child a child pornography crime. Can sexting between juveniles really be classified as child pornography in Montana?

A “child pornography crime” is usually considered to be the possession of child pornography material by an adult, which constitutes felony sexual abuse of children under section 45-5-625, MCA. Currently, under Montana Law, no criminal statutes prohibiting possession of pornographic material that is not child pornography by an adult or a minor.

In the case of possession of child pornography material by a juvenile, whether that possession constitutes a criminal offense in Montana depends on upon the application of the Youth Court statutes. Under section 41-5-106, MCA, part of the Youth Court Act, a determination by a Youth Court that a minor was in possession of pornographic material such that the child could be convicted of violating section 45-5-625, MCA, if an adult, is termed an “adjudication”, as opposed to a conviction, and the adjudication may not be considered a criminal conviction. 

The material covered 41-5-106, MCA, includes any visual or print medium, including an electronic medium that portrays a child engaged in actual or simulated sexual conduct.


Additional Recourses

Child Pornography Crimes in Montana - Visit the website of the Montana Task Form for Internet Crimes Against Children to learn more about the mission to investigate and prosecute those who sexually exploit children through the use of the internet or computers. The Montana ICAC also provides training and equipment to law enforcement officers involved in investigating and prosecution MTICACTF cases.


Attorney for Child Pornography Charges in Montana

If you were arrested for any type of criminal offense related to child pornography offense in the State of Montana, then contact an experienced criminal defense attorney at Beebe Law Firm in Helena, Montana. With offices located in Helena, Greg Beebe services clients throughout Lewis and Clark County. He also represents clients charged with the sexual abuse of children in Boulder in Jefferson County, Montana, and the surrounding areas.

Call today for a free and confidential consultation to discuss your case, the potential penalties, and important defenses that might apply to your case. 


This article was last updated on Friday, September 12, 2016.

Location:

Beebe Law Firm - Criminal Defense & DUI
1085 Helena Ave. Helena, MT 59601