State vs. Federal Sex Offense Allegations

Many sexual offenses prosecuted under Georgia law may also be in violation of federal law under Title 18 of the United States Code.

Federal sexual offenses may include:

• Aggravated sexual abuse
• Sexual abuse of a minor or ward
• Travelling to engage in sex with a minor
• Sexual exploitation of children
• Child pornography offenses
• Online communications with minors
• Underage prostitution offenses
• Human trafficking

There are several reasons why an alleged sex offense can head to federal court.
Usually, more severe sex crimes are prosecuted at the federal level. But there is prosecutorial discretion in where you are charged. Other ways a sexual offense can become a federal charge include:

• The alleged crime took place on federal property, such as a military base, Native American reservation, national park, or federal building or facility.
• The alleged crime required crossing state lines or a national border.
• A federal agency investigated the alleged crime.

Federal court is a separate system from Georgia’s state courts. There are also different penalties. Federal sentences are often harsher than state-level sentences.

The person may face a mandatory minimum prison sentence, high fines, and sex offender registration if convicted.

Child pornography cases are now heavily investigated by several federal agencies, including the FBI and the Department of Homeland Security. Federal agencies constantly monitor online platforms, file-sharing sites, and group messaging apps where child pornography can be distributed.

When law enforcement finds illegal files, they trace those files, including anyone who uploaded or downloaded them, to the IP address associated with the online activity. This often leads to the execution of search warrants and eventually arrests.

Under federal law, 18 U.S.C. §2256 defines child pornography as any visual depiction of sexually explicit conduct where:

• Making the depiction involved a minor engaging in sexually explicit conduct;
• The depiction is a computer image or computer-generated image that is or is no different from a minor engaging in sexually explicit conduct; or
• The depiction was made or changed to look like a minor is engaging in sexually explicit conduct.

A visual depiction can be a photo, film, video, undeveloped film or video, computer image, computer-generated image, or a digital file stored on a computer or electronic device.

When someone is accused of being involved in a child pornography offense, the person may face charges under one of the following statutes:

• 18 U.S.C. §2251 – Sexual Exploitation of Children: This essentially covers the production of child pornography. This statute provides for a mandatory minimum sentence of 15 to 30 years in prison for a first-time conviction.
• 18 U.S.C. §2252 – Activities relating to material involving minors’ sexual exploitation: This covers the possession, distribution, and receiving of child pornography. Charges involving distribution or receipt carry a mandatory minimum five-year prison sentence, while possession or accessing with the intent to view have no mandatory minimum. With possession-related offenses, federal prosecutors have a lot of discretion here since it is nearly impossible to “possess” these materials unless they were also “received.” One priority here for the defense is to negotiate successfully with the prosecutor to ensure that the client does not face a charge that carries a mandatory minimum punishment.
• 18 U.S.C. §2252A – Activities relating to material constituting or containing child pornography: This code section is nearly identical to §2252, except this section encompasses “morphed” computer-generated sexually explicit images that are included in the definition of child pornography above, while §2252 is limited to unaltered images of actual minors. Prosecutions based on such “morphed” child pornography images are rare but these statutes can be used interchangeably to prosecute most federal child pornography offenses.
• 18 U.S.C. §2260 – Production of sexually explicit depictions of a minor for importation into the U.S.: This code section is mainly used to prosecute offenses that are committed outside the United States.

In federal court, penalties are increased for those with a prior sex crime conviction. For example, if someone is charged with a child pornography offense and has a prior conviction for an offense involving “sexual abuse,” the person will be subject to an enhanced mandatory minimum sentence. Cases with 5-year mandatory minimums can become 15, cases with 15-year minimums can become 25. Possession charges with no mandatory minimums can be subject to a 10-year minimum for those with a prior sex offense conviction.