ARS § 13-3553 is the Arizona statute on the crime of sexual exploitation of a minor (child pornography). People commit this offense when they:

1. knowingly record, film, photograph, develop, or duplicate any visual depiction of a minor engaged in sexual conduct, or
2. knowingly distribute, transport, receive, sell, purchase, transmit, or possess such depictions. A violation of this law is a Class 2 felony punishable by up to ten years in state prison.

The language of ARS 13-3553 reads as follows:

A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

Examples

• filming a 14-year-old couple having sex.
• selling a video of two minors engaged in sexual activity to a neighbor.
• sending out sexual provocative images of a 15-year-old girl via the internet.

Defenses

Criminal defense lawyers draw upon several legal defense strategies to contest child pornography charges. Some of these include showing that:

• the defendant did not act knowingly,
• the content of the material did not show a minor,
• law enforcement arrested the accused after an unlawful search and seizure.

Penalties

A violation of this section is a Class 2 felony offense (as opposed to a Class 2 misdemeanor) that is punishable by up to 10 years in state prison.

Sexual exploitation of a minor that is under 15 years of age is punished under ARS 13-705, Arizona’s statute on dangerous crimes against children.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “sexual exploitation of a minor”?

People can be found guilty of this offense in one of two ways. These are if they knowingly:

1. record, film, photograph, develop, or duplicate any visual representation or depiction of a minor engaged in exploitive exhibition or other sexual conduct, or
2. distribute, transport, exhibit, receive, sell, purchase, electronically transmit, possess, or exchange any visual depiction of a minor engaged in exploitive exhibition or other sexual or explicit conduct.ⁱ

While the first group of criminal acts above relates more to the production of child pornography, the second group relates more to the sale and possession of child pornography.

“Exploitive exhibition,” under this statute, means the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer.ⁱⁱ

“Sexual conduct” means actual or simulated:

• sexual intercourse between persons of the same or opposite sex,
• penetration of the vagina or rectum by an object,
• sexual bestiality,
• masturbation,
• sadomasochistic abuse, or
• defecationⁱⁱⁱ

A “minor” means a person or persons under eighteen years of age when a visual depiction was created, adapted, or modified.^iv

Note that even if a person stores several illegal visual depictions on one device, DVD, or hard drive, that person will face charges for every single depiction on that device.^v

2. Are there defenses to ARS 13-3553 charges?

Yes. Defendants can contest charges of sex crimes under this statute with a legal defense/disclaimer. Three common affirmative defenses include accused persons showing that:

1. they did not act with knowledge.
2. a depiction did not involve a minor.
3. they were arrested following an unlawful search and seizure.

2.1 No knowledge

A person is only guilty under this statute if he/she acted “knowingly.” A defense is for a defendant to show that he/she did not act with knowledge that a depiction involved a minor engaged in sexual conduct.

2.2 No minor

Material under this statute must contain explicit depictions of a minor to be illegal. This means an accused can always assert the defense that the person in the alleged criminal material was 18 years of age or older.

2.3 Unlawful search and seizure

If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

3. What are the penalties?

A violation of ARS 13-3553 is a serious crime. The offense is a Class 2 felony under Arizona law.

If a defendant has no prior convictions, the person will face a minimum sentence of four years in state prison. The maximum sentence is a prison term of 10 years.

Note that the sexual exploitation of a minor under 15 years of age is punished under ARS 13-705, Arizona’s statute on dangerous crimes against children. The maximum punishment for a first-time conviction under this statute is 24 years in prison.

In addition to prison time, a person guilty of sexual exploitation must:

1. register as a sex offender, per ARS 13-3821, and
2. be placed on the Arizona sex offender registry.^vi

4. Are there related crimes?

There are three crimes related to the sexual exploitation of a minor. These are:

1. luring a minor – ARS 13-3554,
2. sexual conduct with a minor – ARS 13-1405, and
3. molestation of a child – ARS 13-1410.

4.1 Luring a minor – ARS 13-3554

ARS 13-3554 is the Arizona statute that makes it a crime to lure (or offer or ask for) sexual conduct with another person knowing, or having reason to know, that the other person is a minor.

As under ARS 13-3553, a minor for the purposes of this statute is any person under the age of 18.

4.2 Sexual conduct with a minor – ARS 13-1405

ARS 13-1405 is the Arizona statute that makes it a crime to intentionally or knowingly have sexual intercourse or oral sexual contact with anybody under 18 years of age.

Visual depictions of this type of sexual activity would qualify as child pornography.

4.3 Molestation of a child – ARS 13-1410

ARS 13-1410 is the Arizona statute that makes it a crime to intentionally or knowingly engage in, or cause a person to engage in, sexual contact with a child who is under 15 years of age.

As with ARS 13-3553, a violation of this statute is a Class 2 felony.

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