Just recently we concluded a case where our client was charged with possession of child pornography and distribution of child pornography. The first count carries up to five years in Florida State prison while the second count carried up to fifteen years. Fortunately, we were able to manage this case and worked out a plea bargain to probation.
Before you start commenting on how could we represent somebody engaged in child pornography, it would be wise of you to listen to the facts. Our client was a producer of pornographic, bondage videos. In order to get models and actresses to appear in these videos, he would frequent his local strip clubs. He felt it was rather safe to hire models and actresses in this manner as he knew that one had to be over the age of 18 in order to work at a strip club.
On one such foray to his local club, he ended up talking with a dancer. He told her what his business was and asked whether she would like to be in a video. He gave her his card and that ended the encounter.
A couple of weeks later, he got a call from the dancer who said that she would like to be in a video. She drove over to his residence where he had his studio, excited and eager to do her first movie. She presented him with ID showing that she was over the age of 18. In the presence of others, he questioned her as to why she did not look exactly like she did in the picture on her drivers license. She explained to him that when she got her drivers license she was eight months pregnant, fifty pounds heavier, had changed her hair color and hadn’t figured out what makeup could really do. He and his assistants looked at her and the picture closely and determined that she was telling the truth.
With that, she proceeded to do a video. Apparently, she liked doing the videos as several weeks later she called back and asked them if they wanted her to do another one. They did, in fact, do a second video.
Several days after the second video was concluded one of the assistants mentioned to our client that he had some doubts and some reasons to think that she was under the age of 18. Yet, those reasons were not substantial enough to overcome her explanation as to why the identification did not look exactly like her, nor did they overcome the fact that she was willing to get on the video and state that she was in fact over the age of 18.
As the video was being transformed from raw footage to a marketable product, our client went to another strip club, again looking for models and actresses. As luck would have it, the model/actress had changed clubs that she was working at and was now at this new club. This reverified to our client that in fact she was over the age of 18, as again other people had also determined that she was over the age of 18 or she would not have been allowed to work at this club.
Our client wanted to take one last step of being cautious and made the determination not to release the video until after the date that she would have turned 18 according to his assistant. This, he believed, would totally insulate him from any criminal liability. However, his desires to comply with the law and his understanding of the law were not in sync.
The law in the State of Florida does not allow anyone under the age of 18 to be in an adult or pornographic video. Further, it is irrelevant when the video is released as to whether it is legal. His waiting for her to turn the mythical 18 as his assistant told him he believed her date of birth was, did not insulate him from child pornography charges. Rather, it is the date that the video is done and the age of the model at that time that is used to determine whether the law is being violated.
Our client got lucky in this case. The State Attorneys that we were dealing with were human beings. They realized the efforts that he went through in order to verify that she was over the age of 18. They acknowledged that based upon the facts that they also learned, that he truly was not to blame. They further realized that if he was convicted of child pornography, whether the possession or distribution of it, he would be marked as a sexual offender for life. To their credit, they changed the charge to distribution of obscene material thereby saving him a life full of scorn and ridicule.
Many of you out there are involved in the adult entertainment industry whether it is on the Internet, in books, magazines or on videos and films. The Federal Government requires compliance with 2257. If one does comply with 2257 then they will have been shown proper proof of the age of the model or actress. They will have that proof for government agents to see. Complying with 2257 may be tedious and time consuming, but if one does not comply with 2257, they break the law. If they do comply with 2257 they just might not put themselves in the position like our client did, to show the authorities that he was not to blame, and that he should not be branded a sexual offender.
Just an aside, we were unable to take this case to trial on the merits as our client was also charged with felony possession of marijuana which we had no defense for. We had no choice but to take a plea bargain, however we were very fortunate that we were truly negotiating with human beings.