Sexual Exploitation of a Minor Defense

Under § 13-3553(A), a person commits sexual exploitation of a minor by knowingly doing any of the following:

1. Recording, filming, photographing, developing or duplicating a 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 such a depiction.
3. Possessing, manufacturing, distributing, advertising, ordering, offering to sell, selling or purchasing a child sex doll that uses the face, image or likeness of a real child under 12, with intent to replicate that child's features.
4. Observing a nude minor for the purpose of engaging in sexual conduct for one's own sexual gratification. This paragraph does not apply to consensual conduct between minors who are 15, 16 or 17.

Key definitions are in A.R.S. § 13-3551:

• Minor means a person under 18 at the time the depiction was created, adapted or modified. It includes a depiction "indistinguishable from an actual minor."
• Visual depiction includes each visual image in film, video, photographs or stored data, whether or not it was created or modified with computer software, artificial intelligence or other digital editing tools.
• Exploitive exhibition means the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the sexual stimulation of the viewer.
• Sexual conduct covers a list of actual or simulated sexual acts set out in § 13-3551.

Two more rules matter. Under A.R.S. § 13-705(S), it is not a defense that the "minor" was a person posing as a minor or was fictitious, if the accused knew or had reason to know the purported minor was under 15. And under § 13-3553(B), depictions admitted as evidence are sealed at the end of a grand jury proceeding, hearing or trial.

Minor under 15. For a person who is at least 18 or tried as an adult, § 13-705(F) sets a first offense range of 10 years minimum, 17 presumptive and 24 maximum for each count. With one predicate felony, the range is 21, 28 and 35 years. Two or more predicate felonies require life under § 13-705(L). Section 13-705(K) bars probation and early release for a first degree offense.

Stacked counts. Because a "visual depiction" includes "each visual image" (§ 13-3551), a case involving many images can be charged as many counts. Under § 13-705(P), each dangerous crime against children sentence "shall be consecutive to any other sentence imposed on the person at any time." The only concurrent exception in that subsection is for sexual abuse involving one victim, so it does not reach exploitation counts. With a 10 year minimum per count, stacking can produce very long terms.

Minor 15 to 17. The offense is sentenced under § 13-702(D) as a class 2 felony. A first offense range runs from 3 years (mitigated) to 12.5 years (aggravated), with a presumptive term of 5 years.

Federal law. Similar conduct can be charged federally. Under 18 U.S.C. § 2252A(b), receipt or distribution carries 5 to 20 years, and possession carries up to 10 years, or up to 20 years when an image involves a prepubescent minor or a minor under 12. Prior convictions raise these ranges. Nova Law Group appears in the U.S. District Court for the District of Arizona. See our federal charges page.

Knowledge. The State must prove you acted knowingly. Shared devices, shared accounts, automatic downloads, cloud syncing and peer-to-peer programs can raise real questions about who put material on a device and whether anyone knew it was there.

Forensic review. We can retain an independent digital forensic examiner to review how data was extracted, where it was stored, when it was created or accessed, and whether it was ever opened.

Age and content. The State has to prove the person depicted was a minor and that the image shows exploitive exhibition or other sexual conduct as defined. Whether an image is "indistinguishable from an actual minor," and whether a depicted person was under 15, can affect both the charge and the sentence.

Searches and statements. Cases can begin with a tip from an online provider, a network investigation or a search warrant. We examine whether the warrant was supported and whether the search stayed within its scope, and we review how any statements were obtained.

Counts and mitigation. Because consecutive sentencing applies when the minor is under 15, the number and type of counts charged are a central part of the defense. Evaluations, treatment and personal history may be part of the mitigation we present.