Federal Prosecution: Commercial Sex Acts and Sexual Exploitation of a Minor

Under federal law, anyone under the age of 18 years is considered to be a “minor” regardless of how any state statute may define the age of majority, or how sophisticated and mature the individual may appear.  18 U.S.C. § 2256(1).  Minors are assumed to lack the mental ability or capacity to understand the full consequences of their actions or to be able to make a rational and informed decision about all sort of things, from handling their financial affairs to making health care decisions, and of course, whether or not to participate in any kind of sexual activity.

Accordingly, under federal law it is not possible for someone under the age of eighteen (18 years) to consensually engage in any form of sexual behavior.  Individuals under 18 years of age are viewed under federal jurisprudence as being incapable of legal consent in these situations. This is especially true for any kind of illicit or illegal sexual activity including commercial sex acts (e.g., prostitution, pornography).

Federal Statutes Defining Commercial Sex Acts and the Sexual Exploitation of Minors

Congress has been diligent in passing extensive legislation defining criminal acts involving minors engaged in sexual behavior.  Among the federal statutes pertaining to this issue are the following which relate to commercial sex acts and the sexual exploitation of minors, contained in Title 18 of the United States Code:

• 18 U.S.C. § 1466A (Obscene visual representations of the sexual abuse of children)
• 18 U.S.C. § 1591 (Sex trafficking of children or by force, fraud, or coercion)
• 18 U.S.C. § 2251 (Sexual exploitation of children)
• 18 U.S.C. § 2251A (Selling or buying of children)
• 18 U.S.C. § 2252 (Certain activities relating to material involving sexual exploitation of minors)
• 18 U.S.C. § 2252A (Certain activities relating to material constituting or containing child pornography)
• 18 U.S.C. § 2257 (Record keeping requirements)
• 18 U.S.C. § 2257A (Record keeping requirements for simulated sexual conduct)
• 18 U.S.C. § 2260 (Production of sexually explicit depictions of a minor for importation into the United States)
• 18 U.S.C. § 2421 (Transportation generally, involving transport for illegal sexual activity and related crimes)
• 18 U.S.C. § 2422 (Coercion and enticement)
• 18 U.S.C. § 2423 (Transportation specifically of minors)
• 18 U.S.C. § 2425 (Use of interstate facilities to transmit information about a minor)
• 18 U.S.C. § 2426 (Repeat offenders)
• 18 U.S.C. § 2259A (Assessments in child pornography cases)
• 18 U.S.C. § 3014 (Additional special assessment)
• 18 U.S.C. § 1591 (Sex trafficking of children or by force, fraud, or coercion).

Federal Sex Crime Prosecution Independent from State Charges

It is true that many sex crime charges are based upon state law and proceed through the Texas criminal justice system.  Nevertheless, there are a significant number of federal prosecutions for sex crimes offenses in the State of Texas.  These are charges based upon federal sex crimes that have been investigated by federal agencies either in tandem with state law enforcement or in independent operations conducted by organizations like the Federal Bureau of Investigation (FBI) or the Internet Crimes Against Children Task Force.

Sometimes, defendants will face charges brought by the county district attorney as well as the federal prosecutor at the local district office of the U.S. Attorney General.  It is not double jeopardy for these two cases to proceed at both the state and federal levels.

However, usually financial realities and efficiencies will control the situation with the state proceeding in more generalized sex crime cases and the federal prosecutions moving forward in the more severe or complicated matters.

Federal Prosecutions Are Encouraged

The Department of Justice is clear in its intent to prosecute cases based upon Commercial Sex Acts and the Sexual Exploitation of Minors.  From the Justice Manual (emphasis added):

Prosecution of all crimes involving the sexual abuse or sexual exploitation of children and the distribution of child pornography is strongly encouraged. Investigation has shown that many individuals who produce, import or consensually exchange child pornography do so repeatedly and with full knowledge that it is illegal to do so. In addition, many of these individuals engage in child sexual abuse or would like to do so, given the right opportunity. Many of these people also intentionally engage in occupations or activities that bring them into frequent contact with children. Finally, many people use child pornography to encourage their child victims to engage in sexual activity.

In evaluating such cases, consideration should be given to, inter alia, characteristics of the material, such as the age of the involved child, the type of conduct depicted, the number of involved children, the quantity of the involved material, whether violence or force is used against the child, and characteristics of the target, such as whether the target currently is engaging in sexual activity with children, whether the target is the parent or guardian, or is in a position of trust with the depicted children, whether the target has shown the material to children, whether the target is making money from the conduct, whether the target has committed any prior offenses involving child sexual abuse or exploitation, and the safety of the community.

See, United States Office of the Attorney General Justice Manual, Title 9: Criminal, Section 9-75.020 – General Prosecution Policies and Priorities (“Justice Manual”).

Federal Jurisdiction in the State of Texas: The Power of the Internet

Some may be surprised to learn how easily an action (or failure to act) can be defined as a violation of federal law, even when the accused has never stepped a foot over the Texas state line.  Of course, federal jurisdiction attaches when the activities in question involve crossing state lines.  Federal prosecutions can also be based upon actions that take place within someone’s home, office, or car, as for example when internet activity is involved.

It is possible to face federal criminal sex crime charges based upon Commercial Sex Acts and the Sexual Exploitation of a Minor for someone in Texas who used their phone, tablet, or laptop to send emails, direct messages, texts, tweets, or other social media communications in order to produce or share (distribute) child pornography or with the intent to invite (entice) a minor to travel across state lines for a date.

These circumstances can build into a serious federal case with little effort on the part of the prosecutor.  For example, there is court case precedent that establishes even having a file containing child pornography on the defendant’s computer in a shared folder available to others was considered sufficient to support a charge for distribution even if the accused never transferred the images to anyone.  United States v. Richardson, 713 F.3d 232 (5th Cir. 2013); United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012) (“When an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred” and the “fact that the defendant did not actively elect to transmit those files is irrelevant.”).

• For more, see our discussions in: Child Pornography: Defending Against Overreaching Investigations Using the Internet; and Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing.

Defenses to Federal Charges of Commercial Sex Acts and Sexual Exploitation of Minors

Texas criminal defense attorneys who practice before the federal bench (not all do) understand all too well how zealous the federal prosecutors can be when pursuing charges involving minors and sex crimes.  Emotions can run high in these matters.  This makes it all the more imperative that the accused’s defense lawyer consider each step of the investigation and prosecution in great detail.

Every bit of evidence must be considered and analyzed for authenticity and admissibility.  Was there an invalid search and seizure?  Has there been a violation of due process?  Does the evidence support each count in the indictment?  What are the particular complexities of this case?  Was there entrapment?  Is the accused innocent?

It is possible to negotiate lesser charges or to successfully challenge the entire case in some situations.

• For an example of how this can be done, read my earlier case summary in Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

Sentencing After Federal Conviction of Commercial Sex Acts and the Sexual Exploitation of Minors

Those who are convicted of federal sex crimes involving Commercial Sex Acts and the Sexual Exploitation of Minors will have to undergo sentencing as defined by the United States Sentencing Guidelines (“USSG”).

In these cases, there is likely to be a mandatory minimum sentence to be faced under federal law. Sentencing can involve a minimum of 15 -30 years served in a federal prison upon conviction for federal sex crime charges involving a minor.

• For details on mandatory minimums in the federal sentencing guidelines, read: Mandatory Minimum Penalties in Federal Sentencing.

Sentencing can be impacted by the convicted individual’s past criminal history.  Another possible enhancement of the sentence may be based upon prior convictions that involved aggravated sexual abuse.  With sufficient enhancements under the USSG, it is possible for the person convicted of violated federal laws against Commercial Sex Acts and the Sexual Exploitation of Minors to face life imprisonment.

See, United States Attorney General Primer on Sex Offenses: Commercial Sex Acts and Sexual Exploitation of Minors (March 2020).

Furthermore, anyone convicted of a federal sex crime involving a minor must face the additional punishment of being labelled as a sex offender in the state and national sex offender registries.

Registration as a Sex Offender Upon Federal Conviction of Commercial Sex Acts and the Sexual Exploitation of Minors

Pursuant to the Sex Offender Registration and Notification Act (“SORNA”), anyone who is convicted of a federal sex crime must register with the state sex offender registration system, which coordinates with the national sex offender registry.  As a general rule, how long an individual will have to be listed on the registry will depend upon which “tier” applies to the conviction as defined by SORNA:

• Tier I offenses require 15 years on the registry;
• Tier II offenses require 25 years on the registry; and
• Tier III offenses require registration for the rest of the individual’s lifetime.

Failure to register within a certain time limit is a new crime which can form the basis of an independent federal prosecution.  Failure to update registrations with changes in residence, employment, or attending school/college can also form the basis of a new federal charge.

Under SORNA, failure to register and abide by SORNA can result in up to ten (10) years imprisonment as well as monetary fines.  If the underlying conviction involved violence, then the imprisonment may be as long as thirty (30) years in prison.

See, United States Department of Justice Office of the Attorney General Manual, Criminal Division, Child Exploitation and Obscenity Section (May 2020).

For more regarding sex offender registration, read:

• Sex Offender Registry in Texas: Stigma and Second Chances; and
• Texas Sex Offender Registry List Is Huge but Not Every Listed Sex Offender is an Adult Who Committed a Sex Crime.

Criminal Defense of Federal Charges Involving Commercial Sex Acts and Sexual Exploitation of Minors

Even the earliest hint, suggestion, or suspicion that federal authorities or law enforcement are investigating someone for sex crimes involving minors should be met aggressively, given the consequences of mere allegations alone to someone’s personal life and professional reputation.

Federal sex crimes are particularly concerning from a criminal defense perspective because they can bring with them the potential of a mandatory minimum prison sentence which the federal judge must follow without discretion or leniency.

Federal sex crimes involving a minor also result in the stigmatization of the accused as a sex offender, with ramifications that can limit or destroy lives and relationships years into the future.  It is not only the accused that can suffer permanent harm in these matters: spouses, parents, siblings, other family members and loved ones can also be tainted by association in the public eye to someone accused or convicted of a federal sex crime involving a minor.

In these defense matters, it can never be too early to bring an experienced federal criminal defense attorney on board to advocate on your behalf.

To learn more, read:

• Sex Crimes in Texas: Criminal Defense Overview
• Sex Crimes with Kids: Teachers and Students – It’s a Serious Felony in Texas
• When Sexting Is A Crime in Texas
• New Texas Sex Crimes:  The Online Prostitution Laws Effective September 1, 2019
• Sex Crimes in Texas: How Soon Do You Need to Call A Criminal Defense Lawyer?
• Texas Sex Offender Deregistration Synopsis: Overview and Steps for Name Removal.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”