Michigan Child Pornography Laws and Penalties

The State of Michigan calls child pornography Criminal Sexually Abusive Material or CSAM. Sexually abusive material depicts children under 18 years age when sexual acts are being performed.

This is a serious crime that has serious legal consequences, including possible incarceration and registration on the sex offender registry (SORA).

It is important for individuals to understand that law enforcement agencies vigorously enforce these laws to ensure that those who engage in this criminal activity are held accountable for their actions. If you are charged with a violation of Michigan’s child pornography laws, even if you didn’t do it, you need a sex crimes attorney with a proven track record in defending criminal charges to represent you.

It is also important for individuals to be aware of the elements of the crime of CSAM and the various penalty enhancements that can impact the severity of the penalties.

The purpose of this legal article is to examine the elements of the crime of CSAM in the state of Michigan and the various penalties associated with a violation of this law. Additionally, the article will discuss the factors that may cause the penalties to be increased or lessened.

The three different categories of CSAM are possession, production, and distribution. Each category has a different degree of punishment and possible enhancement. There are a total of 6 different penalties allowable under the law MCL 750.145c.

Michigan law defines CSAM as any visual or printed material that depicts a minor engaging in a sexual act or appearing in a sexually explicit manner. The definition of child sexually abusive material includes material that depicts sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, and/or erotic nudity.

The various CSAM crimes of production, distribution, and possession each have several common elements that must be proven beyond a reasonable doubt in order for a person to be convicted.

1. The defendant knowing allowed if not persuaded or coerced, a child under 18 years old to engage in child sexually abusive activity.
2. The defendant did so for the purpose of producing or making CSAM.
3. The defendant knew or failed to take reasonable measures to assure that the person depicted was less than 18 years.

The production of any material, which includes photographs, videos, digital depictions of sexually explicit images of children engaging in sexual activity is a violation of both State and Federal law.

In fact, it is possible to be charged with both State and Federal crimes. We've handled situations for example where the production of child porn was prosecuted in a United States Federal Court whereas the possession of child pornography was prosecuted in the State Court.

For the Crime of Production of CSAM

1. The defendant produced CSAM.
2. The defendant knew or should have known based on reasonable measures that the person was under 18 years of age.
3. The jury believes that the material appealed to “unhealthy or shameful interests” in nudity sex or excretion.
4. The jury finds that the material lacks any serious literary, artistic, political, or scientific value in the material.

This is the most serious CSAM crime. It is punishable by imprisonment for not more than 20 years or a fine of not more than $100,000.00, or both. However, if the child sexually abusive activity or child sexually abusive material involves a prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100 images of child sexually abusive material, the person is guilty of a felony punishable by imprisonment for not more than 25 years or a fine of not more than $125,000.00, or both.

Child pornography requires a depiction of a minor under the age of 18. Michigan sex crime law requires that you "know or should know" the material depicts and under-age person. This "knowing" is based upon a reasonable person standard. The law requires that if you didn't take necessary and reasonable steps to determine the age. This age requirement should not be confused with the age of consent in Michigan.

The element that is different from the above reads as follows:

1. The defendant distributed, promoted, financed, or otherwise participated in the distribution of child sexually abuse material (see definition above).

Distribution of child pornography is also a very serious crime with hefty punishments. A person who is found guilty of this crime can be imprisoned for up to 7 years. This is more than doubled, up to 15 years, if the material fits above definition or number of images (see production above). Fines can be up to $75,000.00.

Lack of intent is a difficult defense and requires you to show that you precluded the ability of others to obtain the subject child pornographic material. The prosecutor will argue that you failed to take active measures to avoid depictions of minor sex acts from being distributed. This is especially true if peer-to-peer software apps were utilized, such as BitTorrent.

The law of possession is not limited only to physical possession of the material. It can also include those who knowingly sought out such material and again that the person should reasonably know what they were accessing.

There is one element for possession of CSAM that is different from the above as follows:

2. The defendant possessed child sexually abusive material, or intentionally looked for child sexually abusive material to view it, or to cause it to be sent to or seen by another person.

This is the least serious of the three crimes. Penalties can include imprisonment of up to 4 years or a fine of not more than $10,000.00, or both. Again, if the material is particularly offensive, or large amounts of CSAM material is possessed, the penalty is increased to 10 years and up to $50,000.00 in fines.

Aggravated is a term that means the enhancement of the penalties according to law. For example, these enhanced penalties apply to cases where the material or images include prepubescent depictions.

Prepubescent refers to an image or depiction of child prior to puberty. It can also include sadomasochistic abuse or bestiality. The most common grounds for the aggravated enhancement occur when there are more than 100 images found or a single video.

Michigan law provides for penalty enhancements that can cause the penalties for violating the CSAM law to be increased or lessened. These enhancements include:

3. Prior Convictions: Individuals who have prior convictions for CSAM-related offenses face increased penalties.
4. Number of Victims: The number of victims depicted in the CSAM material can impact the severity of the penalties.
5. Other Aggravating Factors: Aggravating factors such as the age of the victim, the nature of the sexual acts depicted, and the manner in which the material was obtained can also impact the severity of the penalties.

SORA stands for the Sex Offender Registration Act. This is a law in the state of Michigan that requires certain individuals convicted of sex crimes to register with the state and provide various information, including their personal details, photograph, and place of residence.

SORA applies to individuals who are convicted of certain sex crimes, including but not limited to rape, sexual assault, and possession, distribution, or production of child pornography. This means that individuals who are convicted of child pornography offenses are required to register with the state as sex offenders, even if they are no longer serving time in prison or on probation.

Regarding the production, distribution, or possession of child pornography, individuals who are convicted of these crimes are typically subject to harsh penalties under both state and federal law, which may include lengthy prison sentences, significant fines, and mandatory registration as a sex offender under SORA.

There are many ways you can become a target of law enforcement. Once they have enough evidence, they may obtain a warrant to search your home and all digital devices including your phone.

Other scenarios can include finding this material during routine computer maintenance. Also, it can be retrieved from a cell phone where files were originally located and images flagged through social media from National Center for Missing and Exploited Children, and Possession. Child pornography charges can be issued and prosecuted even if the material itself is no longer available but consistent with accessing or obtaining the material. This is most often done through a forensic analysis and finding key or common search terms in a person’s internet search history.

Child sexual abusive material is considered by judges, prosecutors, and juries to be a heinous crime and for this reason, it carries with it serious legal consequences in the state of Michigan. However, there are ways to reduce or mitigate a sentence. Few criminal defense lawyers have the requisite skill to fully mitigate a sentence. In fact, many lawyers consider sentencing to be an afterthought.

For this reason, the Barone Defense Firm has joined forced with Doug Passon, a criminal defense veteran and nationally renowned sentence mitigation expert. Together we use a variety of cutting-edge methods that have proven to be tremendously successful in persuading judges to give less harsh sentences, potentially mitigating or even eliminating jail time.

It is essential to have representation as soon as you learn that you are or might be the subject of a sex crimes investigation, meaning throughout this pre-charge process and beyond.

If you think you might be charged with child pornography, it may be in your best interest to hire a sex crimes lawyer from the Barone Defense Firm to represent you. We offer initial consultations free of charge, and our phones are answered 24/7 to assist individuals dealing with charges of child pornography and other related sex crime offenses.