California Child Pornography Definitions – California Penal Code 311

The first thing your Southern California child pornography attorney should discuss with you is the various definitions of child pornography. To gain a conviction, prosecutors must prove that you possessed or distributed content with a prurient interest. A prurient interest is a shameful or morbid interest in nudity, sex or excretion.

Content means any representation of information, data or image, including but not limited to the following.
• Film
• Filmstrip
• Photograph/negative/slide
• Photocopy
• Videotape
• DVD
• Computer hardware or software
• Computer floppy disk
• Data storage medium
• CD-ROM
• Computer-generated equipment/or computer-generated image that contains any film or filmstrip.

What are contemporary statewide standards?

Essentially what this refers to is the impact that the content in question would have on the average person in the statewide community. The average adult person is a hypothetical person who represents the entire community. This includes men and women, religious and nonreligious individuals, and adults of varying age, educational and economic levels, races, ethnicities and points of view.

The contemporary statewide standard means what is acceptable to the statewide community as a whole, not what some person or persons may believe the community ought to accept.

Local community standards can also be considered in deciding what the contemporary statewide standard is. However, the local community standard may not be used in and of itself to determine the statewide standard.

In determining whether the content in question is of prurient interest, the jury may consider whether similar content is openly shown in the community.

How does the State determine what is obscene?

According to state law, content is NOT obscene unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political or scientific value. When determining whether content is obscene or not, the jury is instructed not to weigh its value against prurient appeal.

The depiction of nudity, by itself, does not make matter obscene.

Just because an image contains nudity it does not automatically make it obscene. The content must depict sexual activity and it must meet the requirements for obscenity above. Several works of art contain images of nude children without them being considered child pornography.

It is also important to note that the depiction of sexual activity by itself does not automatically make content obscene either.

What is Sexual Conduct as defined by State law?

Sexual conduct means actual or simulated sexual intercourse/oral copulation/anal intercourse/anal oral copulation/ or any other sexual conduct as defined in Penal Code Section 311.4(d)(1). An act is simulated when it gives the appearance of being sexual conduct.

Now for some key definitions of terms found in California’s child pornography laws.

Distribute

To distribute means to transfer possession, whether or not the transfer is made for money or anything else of value. This included forwarding an e-mail or text message containing images or video considered to be child pornography.

Literary, artistic, political, or scientific value

In deciding the matter’s nature and whether it lacks serious literary, artistic, political, or scientific value,
• Consider whether the circumstances indicate that the matter was being commercially exploited because of its prurient appeal.
• Consider whether the defendant knew that the matter showed persons under the age of 16 years engaging in sexual conduct.