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8.182 Sexual Exploitation of Child—Permitting or Assisting by Parent or Guardian

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8.182 SEXUAL EXPLOITATION OF CHILD—PERMITTING OR ASSISTING BY PARENT OR GUARDIAN (18 U.S.C. § 2251(b))

The defendant is charged in [Count _______ of] the indictment with sexual exploitation of a child in violation of Section 2251(b) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, at the time, [name of victim] was under the age of eighteen years;

Second, the defendant was a [parent] [legal guardian] [person having custody or control] of [name of victim];

Third, the defendant knowingly permitted [name of victim] to [engage in sexually explicit conduct] [assist any other person to engage in sexually explicit conduct] for the purpose of producing a visual depiction of such conduct; and

Fourth,

[the defendant knew or had reason to know that the visual depiction would be mailed or transported across state lines or in foreign commerce.]

or

[the visual depiction was produced using materials that had been mailed, shipped, or transported across state lines or in foreign commerce.]

or

[the visual depiction was actually mailed or transported across state lines or in foreign commerce.]

In this case, "sexually explicit conduct" means [specify statutory definition].

In this case, "producing" means [specify statutory definition].

Comment

"Sexually explicit conduct" is defined in 18 U.S.C. § 2256(2).

"Producing" is defined in 18 U.S.C. § 2256(3).

Transportation in interstate or foreign commerce can be accomplished by any means, including by a computer. 18 U.S.C. § 2251(b).

A defendant who simply possesses, transports, reproduces, or distributes child pornography does not sexually exploit a minor in violation of 18 U.S.C. § 2251, even though the materials possessed, transported, reproduced, or distributed "involve" such sexual exploitation by the producer. See United States v. Kemmish, 120 F.3d 937, 942 (9th Cir.1997).