Florida Statute 827.071 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLVI
CRIMES

Chapter 827
ABUSE OF CHILDREN

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F.S. 827.071

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 paragraph (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.

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

S827.071 2 - CRUELTY TOWARD CHILD - USE OR ALLOW CHILD TO ENGAGE IN SEX - F: S

S827.071 3 - CRUELTY TOWARD CHILD - DIRECT PROMOTE SEXUAL PERFORMANCE BY CHILD - F: S

S827.071 4 - OBSCENE MATERIAL-POSSESS - POSS PROMOTE PRESENT DEPICT CHILD PORNOGRAPHY - F: S

S827.071 5 - OBSCENE MATERIAL-POSSESS - RENUMBERED. SEE REC # 9761 - F: T

S827.071 5a - OBSCENE MATERIAL-POSSESS - POSS CONTROL VIEW DEPICTION CHILD PORNOGRAPHY - F: T

Annotations, Discussions, Cases:

Cases Citing Statute 827.071

Total Results: 20

Morrow v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2024-12-11

Snippet: with intent to promote child pornography. See § 827.071(4), Fla. Stat. This charge was punishable by up

Debose v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2024-12-11

Snippet: 800.04; s. 810.145(8)(b); s. 825.1025; s. 827.071; s. 847.0135, excluding s. 847.0135(6); s.

Monique Haughton Worrell v. Ron D. DeSantis, Governor

Court: Supreme Court of Florida | Date Filed: 2024-06-06

Snippet: charged and proven at trial pursuant to section 827.071(5)(a), Florida Statutes (2023). And, it says, Worrell’s

STATE OF FLORIDA v. JASON LUIS DOMENECH

Court: District Court of Appeal of Florida | Date Filed: 2024-05-08

Snippet: USB drive for evidence that he violated section 827.071(5), Florida Statutes (2021). In the affidavit for

STATE OF FLORIDA v. JASON LUIS DOMENECH

Court: District Court of Appeal of Florida | Date Filed: 2024-02-09

Snippet: USB drive for evidence that he violated section 827.071(5), Florida Statutes (2021). In the affidavit for

STATE OF FLORIDA v. ANDREW SCOTT CROSE

Court: District Court of Appeal of Florida | Date Filed: 2024-01-26

Snippet: 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847

JEFFERY GESKE v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2024-01-12

Snippet: sentencing, argues that sections 775.0847(2) and 827.071(5)(a), Florida Statutes (2019), permit the State

State of Florida v. Christopher Russell Hubbs

Court: District Court of Appeal of Florida | Date Filed: 2023-12-06

Snippet: performance by a child in violation of section 827.071(5)(a), Florida Statutes (2019), and one count of

LAFE TRAVIS BEST vs STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2022-08-26

Snippet: 1 §§ 794.011(2)(a), 777.04(3), 827.071(5), 775.0847(2), (3), Florida Statutes (2018),

Robert W. Kramer v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2021-09-22

Snippet: third-degree felony offense in violation of section 827.071(5), Florida Statutes. A jury found Appellant guilty

In Re: Standard Jury Instructions in Criminal Cases - Report 2019-09

Court: Supreme Court of Florida | Date Filed: 2020-01-16

Snippet: “sadomasochistic abuse” and “sexual bestiality” in § 827.071, Fla. Stat., that differ from the statutory definitions

Steven Jarrod McLendon v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2019-08-30

Snippet: 777.04(4)(d) (attempt is third- degree felony); 827.071(5) (child porn); 775.082(3)(e) (five-year maximum

Caraballo v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-07-26

Citation: 275 So. 3d 1281

Snippet: performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed

Caraballo v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-07-26

Citation: 275 So. 3d 1281

Snippet: performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed

QUINTON DEWAYNE ALFORD v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2019-07-24

Snippet: for violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145,

Stephen Mallet v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2019-05-21

Citation: 270 So. 3d 1282

Snippet: download them. Mallet was charged under section 827.071(5), Florida Statutes (2010), with one hundred seventeen

Berben v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-04-12

Citation: 268 So. 3d 235

Snippet: images depicting child pornography under section 827.071(5)(a), Florida Statutes (2015). Significantly,

Berben v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-04-12

Citation: 268 So. 3d 235

Snippet: images depicting child pornography under section 827.071(5)(a), Florida Statutes (2015). Significantly,

Taylor v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-04-05

Citation: 267 So. 3d 1088

Snippet: sexual performance by a child, contrary to section 827.071(5), Florida Statutes (2014), third-degree felonies

Taylor v. State

Court: District Court of Appeal of Florida | Date Filed: 2019-04-05

Citation: 267 So. 3d 1088

Snippet: sexual performance by a child, contrary to section 827.071(5), Florida Statutes (2014), third-degree felonies