Transmission of Material Harmful to Minors in Florida
Transmission of Material Harmful to Minors is a Third Degree Felony.
Under Florida Statute 847.0138, the crime of Transmission of Material Harmful to Minors is defined as electronically transmitting harmful material to a person known or believed to be a minor.
Harmful Material
Harmful material is defined as any form of content, whether photographic or written, that depicts nudity or sexual content that primarily appeals to a prurient, shameful, or morbid interest that is patently offensive to prevailing standards in the adult community with respect to what is suitable material or conduct for minors and is without serious literary, artistic, political, or scientific value for minors. [1]
Electronic Transmission
While the statute criminalizing transmission of material harmful to minors states that the material must be sent by “Electronic Mail”, the Florida Supreme Courts has defined “electronic mail” to include both traditional email and electronic mail sent by instant messaging. [2]
Unit of Prosecution
Transmission of Material Harmful to Minors investigations frequently result in the discovery of multiple images of harmful material being transmitted. And while the word “material” is commonly interpreted to encompass multiple items, Florida law defines each image of harmful material as a separate and distinct crime even if multiple items are attached to a single email.
Consequently, each piece of harmful material that is transmitted can be prosecuted as a separate count of Transmission of Material Harmful to Minors. [3]
Penalties for Transmission of Material Harmful to Minors
In Florida, the crime of Transmission of Material Harmful to Minors is a Third Degree Felony and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.
Transmission of Material Harmful to Minors is assigned a Level 5 offense severity ranking under Florida’s Criminal Punishment Code. A judge may sentence a person convicted of a single count of Transmission of Material Harmful to Minors to sex offender probation, but may also sentence the person up to the statutory maximum of five years in prison.
Four or More Counts of Transmission of Material Harmful to Minors
A person charged with four or more counts of Transmission of Material Harmful to Minors would score a mandatory prison sentence under Florida’s Criminal Punishment Code and, absent grounds for a downward departure sentence, a judge is required to sentence a person convicted of four or more counts of Possession of Child Pornography to prison, but may also sentence the person up to the statutory maximum of 5 years in prison for each count.
As a result, a person charged with four counts of Transmission of Material Harmful to Minors would be facing a mandatory prison sentence of 12 months in prison and would be facing an additional 4 months in prison for each additional count of Transmission of Material Harmful to Minors the person is convicted of (i.e. A person charged with five counts of Transmission of Material Harmful to Minors would be facing 15 months in prison).
Sex Offender Designation
A person convicted of Transmission of Material Harmful to Minors would not only be placed on sex offender probation, but would also be designated a sexual offender. [4]
A designated sex offender is required to comply with sexual offender registration laws in Florida and throughout the United States for the remainder of their lives.
Defenses to Transmission of Material Harmful to Minors
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, a specific defense to the crime of Transmission of Material Harmful to Minors is:
Entrapment
Entrapment occurs when an agent of the government induces a person to commit a crime that the person was not otherwise predisposed to commit.
In many cases charging Transmission of Material Harmful to Minors, a law enforcement officer will engage in a “Bait & Switch“ where they will first say they are an adult but later claim they are actually a minor while trying to induce a person to send obscene material considered harmful to minors.
In most prosecutions where the “Bait & Switch“ technique is used, the inducement by the government agent will not be in question, rather it will be the predisposition of the defendant to send harmful material to a minor that will be in question.
In determining whether the defendant was predisposed to commit the crime of Transmission of Material Harmful to Minors, the following issues would need to be developed to present a viable Entrapment defense:
- Who initiated or requested transmission of the harmful material;
- How persistent was law enforcement in requesting the harmful material;
- Has the defendant ever engaged in similar behavior; and
- Did the defendant actively express interest in sending the harmful material.
Contact Criminal Defense Lawyer Richard Hornsby
If you have been arrested or charged with the crime of Transmission of Material Harmful to Minors in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.