18.2-374.1 - Production, publication, sale, financing, etc., of child pornography; presumption as to age; severability. - Virginia Statutes

§ 18.2-374.1. Production, publication, sale, financing, etc., of childpornography; presumption as to age; severability.

A. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of thischapter, "child pornography" means sexually explicit visual material whichutilizes or has as a subject an identifiable minor. An identifiable minor isa person who was a minor at the time the visual depiction was created,adapted, or modified; or whose image as a minor was used in creating,adapting or modifying the visual depiction; and who is recognizable as anactual person by the person's face, likeness, or other distinguishingcharacteristic, such as a unique birthmark or other recognizable feature; andshall not be construed to require proof of the actual identity of theidentifiable minor.

For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of thischapter, the term "sexually explicit visual material" means a picture,photograph, drawing, sculpture, motion picture film, digital image, includingsuch material stored in a computer's temporary Internet cache when three ormore images or streaming videos are present, or similar visual representationwhich depicts sexual bestiality, a lewd exhibition of nudity, as nudity isdefined in § 18.2-390, or sexual excitement, sexual conduct orsadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine orpamphlet which contains such a visual representation. An undevelopedphotograph or similar visual material may be sexually explicit materialnotwithstanding that processing or other acts may be required to make itssexually explicit content apparent.

B. A person shall be guilty of production of child pornography who:

1. Accosts, entices or solicits a person less than 18 years of age withintent to induce or force such person to perform in or be a subject of childpornography; or

2. Produces or makes or attempts or prepares to produce or make childpornography; or

3. Who knowingly takes part in or participates in the filming, photographing,or other production of child pornography by any means; or

4. Knowingly finances or attempts or prepares to finance child pornography.

5. [Repealed.]

B1. [Repealed.]

C1. Any person who violates this section, when the subject of the childpornography is a child less than 15 years of age, shall be punished by notless than five years nor more than 30 years in a state correctional facility.However, if the person is at least seven years older than the subject of thechild pornography the person shall be punished by a term of imprisonment ofnot less than five years nor more than 30 years in a state correctionalfacility, five years of which shall be a mandatory minimum term ofimprisonment. Any person who commits a second or subsequent violation of thissection where the person is at least seven years older than the subject shallbe punished by a term of imprisonment of not less than 15 years nor more than40 years, 15 years of which shall be a mandatory minimum term of imprisonment.

C2. Any person who violates this section, when the subject of the childpornography is a person at least 15 but less than 18 years of age, shall bepunished by not less than one year nor more than 20 years in a statecorrectional facility. However, if the person is at least seven years olderthan the subject of the child pornography the person shall be punished byterm of imprisonment of not less than three years nor more than 30 years in astate correctional facility, three years of which shall be a mandatoryminimum term of imprisonment. Any person who commits a second or subsequentviolation of this section when he is at least seven years older than thesubject shall be punished by a term of imprisonment of not less than 10 yearsnor more than 30 years, 10 years of which shall be a mandatory minimum termof imprisonment.

D. For the purposes of this section it may be inferred by text, title orappearance that a person who is depicted as or presents the appearance ofbeing less than 18 years of age in sexually explicit visual material is lessthan 18 years of age.

E. Venue for a prosecution under this section may lie in the jurisdictionwhere the unlawful act occurs or where any sexually explicit visual materialassociated with a violation of this section is produced, reproduced, found,stored, or possessed.

F. The provisions of this section shall be severable and, if any of itsprovisions shall be held unconstitutional by a court of competentjurisdiction, then the decision of such court shall not affect or impair anyof the remaining provisions.

(1979, c. 348; 1983, c. 524; 1986, c. 585; 1992, c. 234; 1995, c. 839; 2007,cc. 418, 759, 823.)