Receipt of child pornography

Receipt of child pornography is an offense that involves knowingly receiving child pornography. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. Production is another means. The courts have found that possession of child pornography does not by itself prove receipt. Possession is a lesser-included offense of receipt.

Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty. In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).

Burden of proof

The government has the burden of showing how the CP was received.

At the federal level, a connection to interstate commerce must be proved. Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography. The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."

History

The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the Child Protection Act of 1984 which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. Reverse sting operations like “Operation Looking Glass” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.

In 2003, the PROTECT Act established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.