Florida Statutes
Fla. Stat. § 827.071 (2025)
Sexual performance by a child; child pornography; penalties.
✓ 2025 Florida Statutes: current through the 2025 Regular Session
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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)1. “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.”
2. As used in subparagraph 1., “actual or simulated lewd exhibition of the genitals” may be evidenced by the overall content of an image, taking into account the age of the minor depicted and, including, but not limited to, whether:
a. The focal point of the image is on the minor’s genitals;
b. The setting of the image is sexually suggestive or in a place or pose generally associated with sexual conduct;
c. The minor is depicted in an unnatural pose, or in inappropriate attire, considering the age of the minor;
d. The image suggests sexual coyness or a willingness to engage in sexual conduct; or
e. The image is intended or designed to elicit a sexual response in the viewer.
(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 solicit, 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 solicitation, 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 solicited, 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 solicited, 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; s. 2, ch. 2025-99.
Arrestable Offenses under F.S. 827.071
M = misdemeanor · F = felony · degree: F=1st S=2nd T=3rd§827.071(2)CRUELTY TOWARD CHILDUSE OR ALLOW CHILD TO ENGAGE IN SEX
§827.071(3)CRUELTY TOWARD CHILDDIRECT PROMOTE SEXUAL PERFORMANCE BY CHILD
§827.071(4)OBSCENE MATERIAL-POSSESSPOSS PROMOTE PRESENT DEPICT CHILD PORNOGRAPHY
§827.071(5)OBSCENE MATERIAL-POSSESSRENUMBERED. SEE REC # 9761
§827.071(5a)OBSCENE MATERIAL-POSSESSPOSSESS CONTROL VIEW SOLICIT DEPICT CHILD PORN
Notes of Decisions
Cited in 174
cases (18 in the last 5 years), 1987–2026 · leading case: Schmitt v. State, 590 So. 2d 404 (Fla. 1991).
Schmitt v. State, 590 So. 2d 404 (Fla. 1991). “See § 827.071, Fla. Stat. (1987). In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is…”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
United States v. Jason Kushmaul, 984 F.3d 1359 (11th Cir. 2021). “§§ 2252A(b)(1) and (b)(2) because of his prior conviction for promoting the sexual performance of a child under Fla. Stat. § 827.071 (3). Specifically, Kushmaul claims his Florida offense does not qualify for sentencing enhancement under 18 U.”
State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997). “NOTES [1] Section 827.071, Florida Statutes (1995), is entitled "Sexual performance by a child; penalties.”
Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990). “Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.”
Parker v. State, 81 So. 3d 451 (Fla. 2d DCA 2011). “representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-04., 257 So. 3d 370 (Fla. 2018). “, that differ from the statutory definitions in § 827.071, Fla. Stat. As of June 2018, there is no case law that decides which definition applies for a violation of [§ 800.”
Walsh v. State, 198 So. 3d 783 (Fla. 2d DCA 2016). “0847 allows the State to reclassify violations of section 827.071 to second-degree felonies if the offender possesses ten or more images and the content of at least one image contains at least one of the types of images listed in the statute.”
Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998). “He argues (1) that section 827.071, Florida Statutes (1995), upon which all of the convictions are based, is unconstitutionally vague and irrational as applied to the facts of his case; (2) that the trial court erroneously denied his motion for a judgment of acquittal; (3) that…”
Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010). “Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance.”
State v. Farnham, 752 So. 2d 12 (Fla. 5th DCA 2000). “[1] In considering this issue, we must look to legislative intent behind the enactment of section 827.071 in order to decide the allowable units of prosecution.”
Stelmack v. State, 58 So. 3d 874 (Fla. 2d DCA 2010). “Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case.”
827.071(1): 2 cases
Schmitt v. State, 590 So. 2d 404 (Fla. 1991). “See § 827.071, Fla. Stat. (1987). In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is…”
Schroeder v. State, 680 So. 2d 473 (Fla. 1st DCA 1996).
827.071(1)(a): 4 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
LAP v. State, 62 So. 3d 693 (Fla. 2d DCA 2011).
827.071(1)(b): 5 cases
Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990). “Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.”
Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1990).
Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998). “He argues (1) that section 827.071, Florida Statutes (1995), upon which all of the convictions are based, is unconstitutionally vague and irrational as applied to the facts of his case; (2) that the trial court erroneously denied his motion for a judgment of acquittal; (3) that…”
Burk v. State, 705 So. 2d 1003 (Fla. 4th DCA 1998).
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
827.071(1)(b)(1): 1 case
Deivys Diaz v. the State of Florida (Fla. 3d DCA 2025).
827.071(1)(c): 2 cases
Burk v. State, 705 So. 2d 1003 (Fla. 4th DCA 1998).
State v. ARS, 684 So. 2d 1383 (Fla. 1st DCA 1996).
827.071(1)(d): 2 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
827.071(1)(e): 3 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
827.071(1)(f): 3 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
827.071(1)(g): 13 cases
Schmitt v. State, 590 So. 2d 404 (Fla. 1991). “See § 827.071, Fla. Stat. (1987). In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is…”
State v. Adkins, 96 So. 3d 412 (Fla. 2012).
Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990). “Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA 2002).
827.071(1)(h): 11 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
State v. Jenkins, 910 So. 2d 934 (Fla. 2d DCA 2005).
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
State of Florida v. Christopher Russell Hubbs, 377 So. 3d 1162 (Fla. 4th DCA 2023).
Primavera v. Sec'y, Dep't of Corr. (M.D. Fla. 2021).
827.071(1)(j): 3 cases
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
827.071(1)(l): 1 case
Deivys Diaz v. the State of Florida (Fla. 3d DCA 2025).
827.071(2): 19 cases
State v. Snyder, 807 So. 2d 117 (Fla. 3d DCA 2002).
Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010). “Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance.”
Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990). “Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.”
Carlos J. Acevedo v. State of Florida, 218 So. 3d 878 (Fla. 2017).
Grady v. State, 701 So. 2d 1181 (Fla. 5th DCA 1997).
827.071(3): 24 cases
A.H. v. State, 949 So. 2d 234 (Fla. 1st DCA 2007).
Burk v. State, 705 So. 2d 1003 (Fla. 4th DCA 1998).
State v. Brabson, 7 So. 3d 1119 (Fla. 2d DCA 2008).
Brian Michael Robinson v. State of Florida, 205 So. 3d 584 (Fla. 2016).
Rotte v. City of Jacksonville, 509 So. 2d 1252 (Fla. 1st DCA 1987).
827.071(4): 20 cases
Doe v. Am. Online, Inc., 783 So. 2d 1010 (Fla. 2001).
In Re: Stand. Jury Instructions in Crim. Cases-Report 2017-03., 238 So. 3d 182 (Fla. 2018). “§ 827.071(1)(a), Fla. Stat. "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.”
Wade v. State, 751 So. 2d 669 (Fla. 2d DCA 2000).
Chesser v. State, 148 So. 3d 497 (Fla. 2d DCA 2014).
Berben v. State, 268 So. 3d 235 (Fla. 5th DCA 2019).
827.071(5): 64 cases
Schmitt v. State, 590 So. 2d 404 (Fla. 1991). “See § 827.071, Fla. Stat. (1987). In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is…”
State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997). “NOTES [1] Section 827.071, Florida Statutes (1995), is entitled "Sexual performance by a child; penalties.”
State v. Farnham, 752 So. 2d 12 (Fla. 5th DCA 2000). “[1] In considering this issue, we must look to legislative intent behind the enactment of section 827.071 in order to decide the allowable units of prosecution.”
Stelmack v. State, 58 So. 3d 874 (Fla. 2d DCA 2010). “Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case.”
Burnett v. State, 848 So. 2d 1170 (Fla. 2d DCA 2003).
827.071(5)(a): 19 cases
Walsh v. State, 198 So. 3d 783 (Fla. 2d DCA 2016). “0847 allows the State to reclassify violations of section 827.071 to second-degree felonies if the offender possesses ten or more images and the content of at least one image contains at least one of the types of images listed in the statute.”
Berben v. State, 268 So. 3d 235 (Fla. 5th DCA 2019).
United States v. Jennifer A. Sparks, 806 F.3d 1323 (11th Cir. 2015).
In re Stand. Jury Instructions in Crim. Cases-Report No. 2012-04, 131 So. 3d 720 (Fla. 2013).
In Re: Stand. Jury Instructions in Crim. Cases-Report 2018-10., 259 So. 3d 765 (Fla. 2018).
827.071(d): 2 cases
In Re Stand. Inst. in Crim. Cases (No. 2005-3), 969 So. 2d 245 (Fla. 2007).
In Re Stand. Jury Instructions in Crim. Cases—report No. 2014-07, 163 So. 3d 478 (Fla. 2015).
827.071(f): 2 cases
In Re Stand. Inst. in Crim. Cases (No. 2005-3), 969 So. 2d 245 (Fla. 2007).
In Re Stand. Jury Instructions in Crim. Cases—report No. 2014-07, 163 So. 3d 478 (Fla. 2015).
827.071(l)(a): 1 case
L.A.P. v. State, 62 So. 3d 693 (Fla. 2d DCA 2011).
827.071(l)(b): 2 cases
Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010). “Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance.”
Jenrette-Smith v. State, 114 So. 3d 427 (Fla. 2d DCA 2013).
827.071(l)(e): 1 case
State v. A.R.S., 684 So. 2d 1383 (Fla. 1st DCA 1996).
827.071(l)(g): 7 cases
Parker v. State, 81 So. 3d 451 (Fla. 2d DCA 2011). “representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.”
State v. Brabson, 7 So. 3d 1119 (Fla. 2d DCA 2008).
Stelmack v. State, 58 So. 3d 874 (Fla. 2d DCA 2010). “Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case.”
L.A.P. v. State, 62 So. 3d 693 (Fla. 2d DCA 2011).
Andrews v. State, 130 So. 3d 788 (Fla. 1st DCA 2014).
827.071(l)(h): 3 cases
Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010). “Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance.”
State v. Brabson, 7 So. 3d 1119 (Fla. 2d DCA 2008).
Breeze v. State, 634 So. 2d 689 (Fla. 1st DCA 1994).
827.071(l)(i): 1 case
Parker v. State, 81 So. 3d 451 (Fla. 2d DCA 2011). “representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.”
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