F.S. 847.0137, F.S. 847.0138 – Transmission of Porn or Other Materials Harmful to Minors

It is against the law in Florida to send to minors (people under 18) pornography or other materials that may be harmful to them through email, text, or other electronic messaging system. The law prohibits people in Florida from sending such messages electronically to any child – either in this state or elsewhere – and outlaws people from outside the state sending such correspondence to children in Florida. 

These rules are codified in Florida Statutes as F.S. 847.0137 and F.S. 847.0138, and both are third-degree felony offenses for which a person who is convicted will have to register as a sex offender, per F.S. 943.0435.

Also, each individual transmission that violates one of these statutes is counted as its own separate offense. That in turn increases the maximum risk a defendant faces, given that Florida courts can – and very often do – order sentences for these offenses to run concurrently, meaning one right after the other. Prosecutors are not shy about using this as a bargaining chip in plea bargain negotiations, as it gives them a clear advantage over the defendant. It is essential that anyone arrested for any type of child pornography charges hire an experienced Florida criminal defense attorney as soon as possible – and refuse to talk to anyone about the allegations until then. 

This statute prohibits anyone from knowingly transmitting an image, information or data that is harmful to minors to any minor (in Florida or elsewhere) who is specifically known or believed by the defendant to be a minor. 

To “transmit” in this statute means to send by electronic messaging. 

In this case, “known by the defendant to be a minor” means that the accused had actual knowledge that the person to whom they were sending this material was under the age of 18 OR they believed them to be under the age of 18. So if an undercover agent or someone else was posing as a minor, it’s not a valid defense to argue that the person to whom the harmful materials were sent wasn’t actually a minor. 

As for what exactly is “material harmful to minors,” we must refer back to F.S. 847.001(7). Such materials can mean pretty much any material (exhibition, presentation, reproduction, representation, etc.) of nudity, sexual conduct, or sexual excitement that:

• Mostly is of a sexual, morbid, or shameful interest. 
• Is patently offensive given the prevailing standards of the adult community as a whole with respect to what’s suitable material or conduct for minors. 
• When considered as a whole, it lacks the benefit of any real value in terms of art, science, literature, or politics. (Sex and nudity can be a legitimate subject for all of these, such that even if it is offensive and appeals to a prurient interest, it won’t be considered obscene.)

The materials outlined in this statute aren’t necessarily sexual or pornographic, but they could be. As noted in Std. Jury Instr. (Crim) 24.1-24, “prurient interest” is a shameful or morbid interest in sex, nudity, or excretion. If the average person today with a normal interest in sex could view the material candidly and openly, then it isn’t prurient.

“Morbid” is defined as diseased, sick or dwelling on the gruesome.

This provision of Florida criminal statutes says that any person who knew or reasonably should have known they were sending child pornography to another person – either in Florida or any other state – is guilty of a third-degree felony. 

“Transmit” in this case can mean that you actually sent it via the internet or other interconnected network using an electronic device or other equipment. It can also mean the act of providing access for the recipient and/or causing such images to be delivered – even if you weren the one who directly sent them. 

A couple differences between F.S. 847.0137 and F.S. 847.0138:

• F.S. 847.0137 statute expressly prohibits sending child pornography to anyone. It’s not solely limited to sending such materials to minors under 18. 
• F.S. 847.0137 focuses solely on child pornography, while F.S. 847.0138 outlaws sending minors any materials that may be harmful to them. 

Both offenses are serious crimes in Florida. But there are usually a number of compelling defenses an experienced criminal defense lawyer can unearth and employ effectively. Acting early in the case to hire a good attorney is important.

If you have been arrested in Broward County, contact the Fort Lauderdale Criminal Defense Lawyers at The Ansara Law Firm by calling (954) 761-4011.