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Transmission of Harmful Material

To prove the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment under section 847.0138(2), Florida Statutes, at trial, the prosecutor with the State Attorney’s Office must prove the following three elements beyond a reasonable doubt:

  1. Defendant knowingly sent an image, information or data that he or she knew or believed to be “harmful to minors.”
  2. Defendant sent the image, information or data to a specific individual who was either actually known by him or her to be a minor or believed by him or her to be a minor.
  3. Defendant sent the image, information or data via electronic mail.

If you are accused of transmission of material harmful to a minor under section 847.0138(2), then contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.

On December 5, 2018, the jury returned a “not guilty” in a case pending before the Honorable Susan L. Barthle in Dade City, FL. The crime of Lewd and Lascivious Molestation is a first degree felony, punishable by life in prison (with a 25 year minimum mandatory prison sentence). Instead of facing those penalties, our client was exonerated and walked out of the courthouse with us after the jury returned the “not guilty” verdict. Leslie M. Sammis and Amanda F. Brunson were the lead attorneys in the case.

Disclaimer: The facts of your case may differ from the facts discussed here. Not all case results are listed here. The case results discussed here are not necessarily representative of the results obtained in all cases. Each case is different and must be evaluated and handled on its own merit.

Attorney for Transmission of Harmful Material in Tampa, FL

The attorneys at Sammis Law Firm represent clients charged with the transmission of harmful materials to minors and related charges include traveling to seduce/solicit/entice a child to commit a sex act in violation of section 847.0135(4)(a), Florida Statutes.

Our four attorneys are experienced in fighting allegations involving sexually motivated offenses in Tampa, FL, and throughout the surrounding parts of the greater Tampa Bay area. Our main office is conveniently located in downtown Tampa. We have a second office in New Port Richey in Pasco County, FL, across from the West Pasco Judicial Center.

Contact us to find out more about the charge pending against you, the potential penalties, and the best possible defenses that can be used to fight the accusation. Call (813) 250-0500.


When is the Material “Harmful to Minors”?

An image, information, or data that is “harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:

  • Predominately appeals to a prurient, shameful, or morbid  interest;
  • Is patently offensive to prevailing standards in the adult   community as a whole with respect to what is suitable material or conduct for minors; and
  • Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

A mother’s breastfeeding of her baby is not under any circumstance “harmful to minors.” A mother’s breastfeeding of her baby does not under any circumstance constitute “nudity” or “sexual conduct” irrespective of whether or not the nipple is covered during or incidental to feeding.


Definitions in Florida’s Transmission of Material Harmful to Minors Statute

The statutory scheme for crimes against children define many of the terms including in the statute that prohibits the transmission of material harmful to a minor including:

  • Minor – Under § 847.0137(1)(a), Fla. Stat., the term “minor” means any person less than 18 years of age.
  • Nudity – Under § 847.001(9), Fla. Stat., the term “nudity” means:
    • the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or
    • the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or
    • the depiction of covered male genitals in a discernibly turgid state.
  • Sexual Conduct – Under § 847.001(16), Fla. Stat., the term “sexual conduct” means:
    • actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
    • actual lewd exhibition of the genitals;
    • actual physical contact with a person’s clothed or unclosed 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.
  • Simulated – Under § 847.001(19), Fla. Stat., the term “simulated” means the explicit depiction of conduct described in the definition of “sexual conduct” which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
  • Deviate Sexual Intercourse – Under § 847.001(5), Fla. Stat., the term “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.
  • Sadomasochistic Abuse – Under § 847.001(13), Fla. Stat., the term “sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
  • Sexual Battery – Under § 847.001(14), Fla. Stat., the term “Sexual Battery” means:
    • oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by a finger or any other object;
    • however, “sexual battery” does not include an act done for a bona fide medical purpose.
  • Sexual Excitement – Under § 847.001(17), Fla. Stat., the term “sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

Sexual Offenses by School Authority Figures Against Students

Under § 775.0862, Fla. Stat., the penalties for the offense are enhanced for sexual offenses committed against student by school authority figure. In these cases, the jury is instructed that:

If you find that (defendant) committed the crime of Transmission of Material Harmful to Minors by Electronic Device or Equipment, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

The term “authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

The term “school” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults.

Under § 775.0862(1)(b), Fla. Stat., the following terms are defined including “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

The term “student” means a person younger than 18 years of age who is enrolled at a school.


Standard Jury Instructions for Harmful to Minor Crimes

The courts have suggested that the Supreme Court Committee on Standard Jury Instructions in Criminal Cases should be amended for section 847.0138(2)—see Std. Jury Instr. (Crim.) 11.21—to define the terms “prurient interest” and “morbid interest” as is done in the instructions for other chapter 847 crimes in which those terms are used. See Std. Jury Instr. (Crim.) 24.1–24.6.

Those terms are key components of the statutory definition of “harmful to minors”—which is the crux of section 847.0138(2).

The Standard Jury Instructions for the crime of “Transmission of Material Harmful to Minors by Electronic Device or Equipment” under § 847.0138(2), Fla. Stat., are found in Chapter 11.21. The jury instruction were adopted in 2015.


This article was last updated on Thursday, November 1, 2018.

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