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F.S. 827.071 on Google Scholar

F.S. 827.071 on Casetext

Amendments to 827.071


The 2022 Florida Statutes

Title XLVI
CRIMES
Chapter 827
ABUSE OF CHILDREN
View Entire Chapter
F.S. 827.071 Florida Statutes and Case Law
827.071 Sexual performance by a child; child pornography; penalties.
(1) As used in this section, the following definitions shall apply:
(a) “Child” or “minor” means any person, whose identity is known or unknown, younger than 18 years of age.
(b) “Child pornography” means:
1. Any image depicting a minor engaged in sexual conduct; or
2. Any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.
(c) “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.
(d) “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.
(e) “Identifiable minor” means a person:
1. Who was a minor at the time the image was created, altered, adapted, or modified, or whose image as a minor was used in the creating, altering, adapting, or modifying of the image; and
2. Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

The term may not be construed to require proof of the actual identity of the identifiable minor.

(f) “Intentionally view” means to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.
(g) “Performance” means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.
(h) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, transmute, publish, distribute, circulate, disseminate, present, exhibit, send, post, share, or advertise or to offer or agree to do the same.
(i) “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.
(j) “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.
(k) “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or female genitals of the other.
(l) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”
(m) “Sexual performance” means any performance or part thereof which includes sexual conduct by a child.
(n) “Simulated” means the explicit depiction of conduct set forth in 1paragraph (l) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
(2) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes child pornography. The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5)(a) It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include child pornography. The possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation is a separate offense. If such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes child pornography depicting more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense. A person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Paragraph (a) does not apply to any material possessed, controlled, or intentionally viewed as part of a law enforcement investigation.
(6) Prosecution of a person for an offense under this section does not preclude prosecution of that person in this state for a violation of any other law of this state, including a law providing for greater penalties than prescribed in this section or any other crime punishing the sexual performance or the sexual exploitation of children.
History.s. 4, ch. 83-75; s. 1, ch. 85-273; s. 1, ch. 86-38; s. 1, ch. 91-33; s. 1, ch. 92-83; s. 1283, ch. 97-102; s. 1, ch. 2001-54; s. 4, ch. 2007-143; s. 15, ch. 2011-220; s. 3, ch. 2012-19; s. 9, ch. 2022-165; s. 3, ch. 2022-212.
1Note.The cross-reference was revised by the editors, incident to compiling the 2022 Florida Statutes, as a result of meshing amendments by s. 9, ch. 2022-165, and s. 3, ch. 2022-212.

Statutes updated from Official Statutes on: August 29, 2022
F.S. 827.071 on Google Scholar

F.S. 827.071 on Casetext

Amendments to 827.071


Arrestable Offenses / Crimes under Fla. Stat. 827.071
Level: Degree
Misdemeanor/Felony: First/Second/Third

827.071 2 - CRUELTY TOWARD CHILD - USE OR ALLOW CHILD TO ENGAGE IN SEX - F: S
827.071 3 - CRUELTY TOWARD CHILD - DIRECT PROMOTE SEXUAL PERFORMANCE BY CHILD - F: S
827.071 4 - OBSCENE MATERIAL-POSSESS - POSS PROMOTE PRESENT DEPICT CHILD SEX CONDUCT - F: S
827.071 5 - OBSCENE MATERIAL-POSSESS - POSS CONTROL VIEW DEPICTION CHILD SEX CONDUCT - F: T


Civil Citations / Citable Offenses under S827.071
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 827.071.


Annotations, Discussions, Cases:

  1. Schmitt v. State

    590 So. 2d 404 (Fla. 1991)   Cited 125 times
    We find that, in light of the foregoing holding, subsections 827.071(1)(g) and 827.071(5) are otherwise constitutional and valid. The other conduct proscribed by the relevant portions of the statute consists of several kinds of actual or simulated sexual acts, bestiality, masturbation, sadomasochism, lewd exhibition of the genitals, or actual or simulated sexual battery. § 827.071(1)(g), Fla. Stat. (1987). Each of these elements is precisely defined either in the statute itself or by reference to terms such as "lewd" that have a sufficiently narrow meaning under Florida's common law, as noted above. § 827.071(1), Fla. Stat. (1987).
    PAGE 415
  2. State v. Cohen

    696 So. 2d 435 (Fla. Dist. Ct. App. 1997)   Cited 26 times
    Indeed, in State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989), the defendant was charged, under subsection 827.071(5), with knowing possession of a videotape depicting sexual conduct. The fifth district upheld the constitutionality of subsection 827.071(5) against the argument that mere private possession of obscene material should not be criminalized. It was neither argued nor implied in Beckman that possession of a videotape might be excluded from the prohibitions of subsection 827.071(5). In fact, just the opposite conclusion can be inferred. See also State v. Tirohn, 556 So.2d 447 (Fla. 5th DCA 1990).
    PAGE 439
  3. Schmitt v. State

    563 So. 2d 1095 (Fla. Dist. Ct. App. 1990)   Cited 32 times
    In point IV, appellant argues that the trial court erred in failing to dismiss counts IV through VII where the videotape was never shown to an audience. This court addressed a similar argument addressed in Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1990). In Firkey, appellant videotaped an alleged sexual battery. He asserted that his conviction for having a child engage in a sexual performance, pursuant to section 827.071, Florida Statutes (1987), could not stand since the videotape had never been exhibited to an audience. Section 827.071(1)(b), Florida Statutes (1987), reads:
    PAGE 1101
  4. Stelmack v. State

    58 So. 3d 874 (Fla. Dist. Ct. App. 2010)   Cited 4 times
    Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case. Chapter 827 is entitled "Abuse of Children," and the title of section 827.071 is "Sexual performance by a child; penalties." When section 827.071 was created in 1983, the bill that led to its creation was summarized in a staff summary prepared for the joint legislative committee. The summary includes the following explanation of the intent of section 827.071:
    PAGE 877
  5. Wade v. State

    751 So. 2d 669 (Fla. Dist. Ct. App. 2000)   Cited 8 times
    The State charged Wade in counts one through three with possession of child pornography with intent to promote, pursuant to section 827.071(4), Florida Statutes (1995). Count one was based on six printed reproductions of a single computer graphic file and a print which law enforcement produced from the computer file. Four of the reproductions were found on the nightstand and two were found on the entertainment center in Wade's rooms. Count two was based on three reproductions of the same image. One was found in the nightstand drawer, one was found on top of the entertainment center, and one was printed by law enforcement from a computer graphic file. Count three was based on four images of the same photo law enforcement retrieved and printed from the computer hard drive files. In counts four through fifty-seven, the State charged Wade with possession of child pornography, pursuant to section 827.071(5), Florida Statutes (1995). These possession charges were based on Wade's computer hard drive files and the three videotapes.
  6. State v. Parrella

    736 So. 2d 94 (Fla. Dist. Ct. App. 1999)   Cited 7 times
    Section 827.071(5) was amended in 1992, the amendment changing the article "any" to "a," and adding a sentence making the possession of each photograph, motion picture, exhibition, show, representation, or presentation a separate offense. Appellee's argument, that the legislature's failure to similarly amend section 827.071(4) evinces an intent to preclude multiple units of prosecution for violations of subsection (4) in the same criminal episode, though noted, is not the basis of our holding.
    PAGE 96
  7. Nicholson v. State

    748 So. 2d 1092 (Fla. Dist. Ct. App. 2000)   Cited 4 times
    Appellant was convicted of promoting sexual performance by a child by videotaping his girlfriend having oral sex with a minor (count II) and possessing pictures he knew included sexual conduct by a child (count III), in violation of Florida Statutes sections 827.071(3) and 827.071(5).
  8. State v. A.R.S

    684 So. 2d 1383 (Fla. Dist. Ct. App. 1996)   Cited 5 times
    A delinquency petition was filed on October 9, 1995, charging appellee with the following: Count I — knowingly employing, authorizing, or inducing a child of less than 18 years of age to engage in a sexual performance, contrary to section 827.071(2); Count II — knowingly producing, directing, or promoting a performance including sexual conduct by a child of less than 18 years of age, contrary to section 827.071(3); and Count III — possessing a videotape of a sexual performance by a child with the intent to promote presentation of the videotape, contrary to section 827.071(4). The charges stem from an incident of September 5, 1994, in which fifteen-year-old A.R.S. videotaped himself and a younger minor (M.B., a female) engaged in nude, sexual foreplay. A.R.S. also is alleged to have retained possession of the videotape and to have played the videotape for a third person when M.B. was not present.
  9. Crosby v. State

    757 So. 2d 584 (Fla. Dist. Ct. App. 2000)   Cited 3 times
    § 827.071(4). Under this provision, the defendant found in possession of multiple copies of the same article of child pornography, during a single episode, may only be prosecuted for one count of this offense. See Wade v. State, 751 So.2d 669 (Fla. 2d DCA 2000). In Wade, this court acknowledged that pursuant to section 827.071(4), the possession of three or more copies of the same article in a single episode gives rise to the presumption of intent to promote the material. We also concluded that subsection (4) allows for only one conviction under such circumstances. We arrived at this conclusion based on the legislature's use of the modifier "any" rather than "a" before the prohibited items. See id.; Farnham, 24 Fla. L. Weekly D139.
  10. State v. Tirohn

    556 So. 2d 447 (Fla. Dist. Ct. App. 1990)   Cited 8 times
    This court has recently upheld section 827.071, Florida Statutes (1987) against a claim that the state cannot criminalize mere private possession of obscene materials, even those involving minors. State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989). In this case, however, Tirohn argues and the trial court found that the statutory definition of sexual conduct as drafted would prohibit possession of a picture of a father bathing his son, two clothed children hugging each other in such a way that their clothed genitals made actual physical contact, or a photograph of a junior high school coach giving a congratulatory smack of the hand to the buttocks of one of his players fully dressed in football uniform; and as such was substantially overbroad and therefore unconstitutional. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Gray, 435 So.2d 816 (Fla. 1983). We agree that the above examples demonstrate the overbroad nature of a portion of section 827.071(1)(g), to wit:
    PAGE 449