Section 617.246 contains three different felony theories

People often describe every allegation involving an unlawful sexual image of a minor as the same crime. Minnesota law does not. Section 617.246 addresses conduct connected to creation, promotion, commercial reproduction, and profit-based dissemination. Minn. Stat. § 617.247 (2026) separately addresses possession and ordinary dissemination.

Subdivision 2 is the use-of-a-minor provision. It applies to a person who promotes, employs, uses, or permits a minor to engage in, or assist others to engage minors in, posing or modeling in a sexual performance or child sexual abuse material. The person must know or have reason to know that the intended conduct is a sexual performance or child sexual abuse material.

Subdivision 3 concerns a person who owns or operates a business in which child sexual abuse material is disseminated to an adult or minor or reproduced. That theory requires proof that the owner or operator knew the content and character of the material disseminated or reproduced. Ownership by itself does not erase the knowledge element.

Subdivision 4 covers dissemination for profit to either an adult or a minor. It likewise requires knowledge or reason to know the material’s content and character. The “for profit” language makes this theory narrower than the general dissemination offense in section 617.247.

A complaint should specify the subdivision, paragraph, alleged act, material, dates, person under 18, knowledge theory, and enhancement. Terms such as exploitation, production, distribution, and pornography may communicate the accusation, but the jury must decide the elements enacted by the legislature.

What it means to promote, employ, use, or permit a minor

The verbs in subdivision 2 cover different conduct. “Promote” has a statutory definition: to produce, direct, publish, manufacture, issue, or advertise. Employing may involve payment but does not necessarily require a formal employment relationship. Using focuses on enlisting or involving the minor. Permitting ordinarily raises questions about authority, control, awareness, and the ability to prevent the conduct.

The statute also includes assisting others to engage minors in posing or modeling. A defendant need not personally operate a camera if the State proves the defendant knowingly performed conduct covered by the provision. Conversely, presence at a location, an association with another participant, or ownership of equipment is not automatically proof of production or promotion.

The alleged conduct must involve posing or modeling, alone or with others, in the legally defined performance or material. An ordinary family photograph, medical image, art project, dance, or nonsexual recording does not become criminal merely because a minor appears in it. Content, context, intended conduct, and the definition of sexual conduct matter.

When the theory is permission, the evidence should identify what the accused supposedly authorized, when the accused learned of it, what power the accused had, and what action was realistically possible. A business title, lease, parental role, or device ownership may be relevant but does not conclusively establish knowing permission.

Accomplice liability may be charged under Minn. Stat. § 609.05 (2026). That doctrine requires intentional aid, advice, hiring, counseling, or conspiracy to commit the crime. Mere presence, passive knowledge, or after-the-fact association is not the same as intentionally aiding the offense.

“Sexual performance” and “sexual conduct” have precise definitions

A sexual performance is a play, dance, or other exhibition presented before an audience or for visual or mechanical reproduction that uses a minor to depict actual or simulated sexual conduct. The audience can matter in a live-performance case; reproduction can supply the alternative in a photograph or recording case.

The defined sexual conduct includes intercourse; specified sadomasochistic abuse; masturbation; lewd exhibition of the genitals; and specified physical contact involving pubic areas, buttocks, or female breasts in an act of apparent sexual stimulation or gratification. The definition should be applied item by item. Nudity alone is not listed as a standalone category.

“Lewd” is not synonymous with unclothed. Framing, pose, focal point, setting, instructions, accompanying communications, and the image as a whole can be relevant. A charging decision should not rest on discomfort or moral judgment detached from the statutory category.

The statute includes simulated conduct in the definition of a performance. That does not relieve the State of proving an exhibition and a listed type of sexual conduct. An ambiguous gesture or innocent physical contact should not be relabeled through speculation.

In a live-performance case, witnesses, venue video, stage direction, payment, advertising, and contemporaneous messages may be important. In a production case, original files, camera metadata, editing history, and communications can show whether the accused created or directed the depiction and what the participants understood.

The 2026 definition of child sexual abuse material is broader than an original photograph

The legislature replaced the prior statutory term “pornographic work” with “child sexual abuse material” in 2025. The change was part of 2025 Minnesota Laws chapter 35. Current drafting and charging documents should use the present terminology while recognizing that older opinions quote older text.

The first branch includes an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor. A copy can therefore qualify even if the accused did not possess the first-generation file.

The second branch reaches visual depictions made electronically, mechanically, or by other means. It includes an image that uses a minor to depict actual or simulated sexual conduct, or that has been created, adapted, or modified to make an identifiable minor appear to engage in sexual conduct.

It also includes material advertised, promoted, presented, described, or distributed in a manner conveying the impression that it contains a visual depiction of a minor engaging in sexual conduct. That clause makes the presentation and description relevant, but the State must still connect the evidence to the exact statutory language.

An identifiable minor is a person who was under 18 when the depiction was created or altered and whose image is used to create it. Identity evidence may include testimony, source images, facial comparison, school or family records, file history, and admissions. A guess based on appearance alone deserves careful examination.

AI-generated and altered depictions require careful statutory and constitutional analysis

The current definition includes a visual depiction of an individual indistinguishable from an actual minor, created through generative artificial intelligence or other computer technology that processes prompts, when the individual is depicted engaging in sexual conduct and the work is obscene. That last requirement—obscenity—is written into the AI-only clause.

Obscenity is a legal standard, not simply an investigator’s description. Whether a work, taken as a whole, appeals to prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value can require instructions and evidence beyond the image’s origin.

The Supreme Court distinguished depictions produced through abuse of actual children from wholly virtual imagery in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250–51 (2002). The Court explained that virtual images are not intrinsically connected to abuse during production. Minnesota’s later statute attempts to address AI material through narrower language that includes indistinguishability and obscenity. Application to a particular work can still present serious First Amendment, vagueness, proof, and expert issues.

Technical proof should distinguish a real photograph, a face swap, an altered photograph using an identifiable minor, a composite, a fully synthetic image, and an image falsely marketed as involving a minor. Those categories may implicate different clauses and different proof.

Minn. Stat. § 617.2471 (2026) supplies limited immunity for certain interactive computer services, information services, telecommunications providers, and employees when the allegation involves solely the AI clause and concerns content supplied by another or protective actions. It is not a general immunity for users or creators.

The State must prove the required knowledge or reason to know

Subdivision 2 asks whether the accused knew or had reason to know the intended conduct was a sexual performance or child sexual abuse material. The statute does not require a confession. Prosecutors may rely on instructions, messages, searches, payment, concealment, file names, repeated conduct, or the content itself.

“Reason to know” is not unlimited strict liability. Evidence should establish what information was available to this accused in the circumstances and why that information communicated the relevant character of the intended conduct. Suspicion after the event is not necessarily advance awareness.

The business and dissemination provisions use closely related knowledge language. For business liability, the person must know the content and character of the material reproduced or disseminated. For profit-based dissemination, the person must know or have reason to know that content and character.

Automated uploads, shared business systems, compromised accounts, employee misconduct, bulk storage, cloud synchronization, and mislabeled files can complicate knowledge. A thumbnail or file name may not show what a person actually viewed. Logs can show account events without identifying the human actor.

Deletion or concealment can be argued as consciousness of guilt, but it also can reflect privacy, panic, ordinary retention settings, or an unrelated concern. The timing, scope, method, and full context matter. A forensic examiner should not treat every absent file as intentional destruction.

Owning or operating a business is not automatic criminal liability

Subdivision 3 applies when child sexual abuse material is reproduced in a business or disseminated from it and the owner or operator knows its content and character. The State should identify the business, the defendant’s ownership or operational role, the act of reproduction or dissemination, and the basis for knowledge.

A business can include a traditional studio or venue, but online platforms, subscription operations, production companies, hosting services, and informal commercial enterprises may generate litigation over the term. Revenue alone does not answer whether the accused owned or operated the relevant enterprise.

Large organizations divide technical access, moderation, billing, and management. Corporate title does not prove awareness of a particular file. At the same time, direct moderation decisions, internal warnings, customer complaints, payment records, and repeated personal involvement can support knowledge.

The defense should obtain organizational charts, access permissions, audit logs, employee policies, moderation queues, takedown records, vendor contracts, and complete communications. Those records can show who controlled the system and what the accused actually received.

Section 617.2471’s service-provider immunity may apply in the narrow AI-only circumstances described by that law. Separately, federal service-provider rules can affect evidence and civil liability, but they do not automatically defeat a state charge based on the defendant’s own production or knowing conduct.

Dissemination under section 617.246 must be “for profit”

Subdivision 4 is not identical to the general dissemination prohibition in section 617.247. Section 617.246 requires dissemination for profit. The State should prove both a transfer or distribution and the commercial purpose or benefit alleged.

Profit may be direct payment for a file, but cases can involve subscriptions, advertising, tips, cryptocurrency, increased platform traffic, bundled access, or a commercial exchange. The legal question is not merely whether money existed somewhere in the enterprise; the evidence must connect the dissemination to profit.

A free message, unsolicited incoming file, automatic cache, or private noncommercial exchange may not satisfy this subdivision even though other laws could be investigated. Charging under the wrong provision is not a harmless label when the elements and maximum punishment matter.

Payment records require authentication and context. A transfer may concern lawful adult material, unrelated services, or a refund. Cryptocurrency analysis can identify a wallet transaction without proving who controlled the wallet or what was purchased.

The recipient may be an adult or minor. Recipient age does not remove the profit requirement. Complete communications before and after the transfer can show solicitation, price, description, knowledge, delivery, and whether the alleged transaction actually occurred.

Age, consent, mistake, and the adult-only affirmative defense

For section 617.246, a minor is any person under 18. The criminal definition differs from some age provisions in Minnesota’s civil or criminal-sexual-conduct statutes. A person who is 16 or 17 still is a minor under this law.

Subdivision 5 expressly provides that the minor’s consent, a parent’s or guardian’s consent, and mistake about the minor’s age are not defenses. That rule can produce harsh results when a person misrepresents age, but a court must apply the statute unless a constitutional or other legal issue changes the analysis.

Consent remains relevant to other disputed facts. Communications may illuminate identity, what was requested, whether production occurred, whether the accused directed anything, and the meaning of ambiguous conduct. It simply cannot excuse conduct proved to violate this section.

Subdivision 6 creates an affirmative defense when the sexual performance or material was produced using only people who were 18 or older. Age-verification records, government identification, contracts, model releases, contemporaneous photographs, and source files can support that defense. The issue is the age of people actually used in production, not the age a fictional character is said to have.

Because it is an affirmative defense, counsel must examine allocation and burden under Minnesota law and request an appropriate instruction when supported by evidence. The defense should not wait until trial to preserve age records that a platform or employer may routinely delete.

Digital attribution and forensic evidence often decide the case

Investigations commonly involve phones, computers, removable media, cloud storage, social-media accounts, cameras, editing applications, payment services, and provider records. The central questions are who controlled each account or device, what occurred, when it occurred, and what the accused knew.

A forensic image should preserve the original medium and permit repeatable examination. Hash values, acquisition notes, tool versions, time settings, and chain-of-custody records matter. Screenshots alone can omit metadata, surrounding messages, account identifiers, and signs of manipulation.

File-system artifacts may show creation, download, viewing, editing, copying, or deletion at different times. A thumbnail can persist after an original is gone. Cloud synchronization can place a file on multiple devices without a deliberate download to each one. Application caches and message previews may be automatic.

Metadata is useful but not infallible. It can be stripped, edited, copied from another file, affected by a device clock, or changed during export. Facial-recognition output and age-estimation software should be tested for methodology, validation, error rates, and suitability to the image.

AI cases may require model artifacts, prompt history, seed values, generation logs, editing layers, source images, and expert comparison. An investigator should not infer a production method merely because an image looks artificial. Conversely, real images can be altered to appear synthetic.

Attribution must account for shared devices, family accounts, employees, remote access, malware, compromised credentials, account recovery, and resale. An internet address identifies a connection at a time; it does not by itself identify the person at the keyboard.

Search warrants, account demands, and interviews deserve immediate review

Search warrants must be supported by probable cause and describe with particularity the place to be searched and items to be seized. In digital cases, the affidavit’s dates, source reliability, nexus to each device, alleged offense, and breadth of requested data can be contested.

Investigators may use provider preservation requests, search warrants, subpoenas, and account-return records before approaching the suspect. A defense review should compare the legal process with what the provider supplied and identify data outside the authorized scope.

Execution also matters. Officers should respect the warrant’s location, devices, and limits. Privileged communications, unrelated intimate material, business secrets, and information belonging to third parties may require segregation or a review protocol.

A person confronted during a search may feel compelled to explain immediately. Statements about device ownership, passwords, age, downloads, business practices, or account access can become central evidence. A calm request for counsel is usually safer than guessing or trying to talk an investigator out of the case.

Do not remotely wipe, factory-reset, hide, transfer, or destroy a device after learning of an investigation. That can create additional allegations and destroy favorable material. Counsel can arrange lawful preservation and expert review without altering originals.

Minnesota and federal cases define the statute’s reach

In the official archived opinion State v. Stamper, No. C7-99-350, 1999 WL 536293, at *2 (Minn. Ct. App. July 27, 1999) (nonprecedential), the court applied the criminal statute to a 17-year-old and held that a private photographic exhibition could qualify because it was made for visual reproduction. The court wrote that the definition covers a person “under 18” and distinguished the separate civil statute then using a lower age.

Stamper is nonprecedential and interpreted an older version, but it illustrates two enduring points: the criminal statute reaches 16- and 17-year-olds, and a public audience is unnecessary when the alleged exhibition is for visual or mechanical reproduction.

In New York v. Ferber, 458 U.S. 747, 757 (1982), the Supreme Court described preventing sexual exploitation and abuse of children as “a government objective of surpassing importance.” The decision permits careful regulation of visual depictions created through sexual abuse of actual children.

Ashcroft, however, invalidated a federal prohibition reaching substantial protected speech involving virtual images. The Minnesota AI clause is newer and differently worded. A court evaluating it should address the exact current text, the obscenity limitation, the alleged creation method, and whether the application involves an actual or identifiable minor.

Older Minnesota decisions may quote “pornographic work” or earlier penalty language. They should not be cited as though they reproduce the 2026 statute. A reliable analysis uses their holdings where still applicable and checks every element against the present official text.

Felony maximums, Sentencing Guidelines, and conditional release

The ordinary violation of subdivisions 2, 3, or 4 carries up to ten years in prison, a fine up to $20,000, or both. The maximum becomes 15 years and $40,000 when the person has a qualifying prior conviction or delinquency adjudication under section 617.246 or 617.247, was a registered predatory offender when the offense occurred, or the violation involved a child under 14.

The statutory maximum is not the presumptive sentence. Minnesota’s 2026 Sentencing Guidelines severity table ranks ordinary subdivision 2(a), 3(a), and 4(a) offenses at sex-offender-grid level D. Enhanced paragraph (b) offenses are level C. Criminal-history score, custody status, modifiers, multiple counts, and departure grounds affect the presumptive result.

The Guidelines also list these offenses as eligible for permissive consecutive sentencing. Multiple files or acts do not automatically authorize unlimited separate punishment; unit-of-prosecution, course-of-conduct, and Minn. Stat. § 609.035 (2026) issues must be analyzed.

Subdivision 7 adds conditional release whenever the court commits a person to prison for this offense. The ordinary term is five years after release. A prior conviction for a listed Minnesota sex offense, section 617.246 or 617.247, or a similar law of another jurisdiction increases the term to 15 years.

Conditional-release conditions can be restrictive and violations can return a person to custody. Treatment, internet access, contact with minors, residence, employment, travel, devices, monitoring, and searches may be addressed through release conditions, supervision decisions, or other orders.

Sentencing can also include restitution, assessments, forfeiture disputes, probation conditions, and no-contact orders. A negotiated resolution must be evaluated for these consequences, not only the announced prison or probation number.

Predatory-offender registration and other lasting consequences

Using a minor in a sexual performance is a registration offense under Minn. Stat. § 243.166 (2026). The registration statute can also be triggered when a person is charged with a listed offense and convicted of another offense arising from the same circumstances. The charging history therefore matters in plea negotiations.

Registration requires extensive identifying, residence, employment, school, vehicle, and contact information, regular verification, and prompt reporting of changes. A knowing registration violation is itself a felony and may carry a mandatory prison term.

Registration does not necessarily mean public community notification in every case; risk-level and release rules are separate. Even nonpublic registration can affect housing, travel, employment, education, family proceedings, and access to technology.

Professional licensing, immigration status, firearm rights, security clearances, and work involving children can be affected. Noncitizens need advice from qualified immigration counsel before entering a plea because offense labels and admitted facts can have consequences beyond Minnesota sentencing.

Expungement should never be promised. Eligibility depends on disposition and current Minn. Stat. § 609A.02 (2026), and sealing a court record does not erase every private, federal, registration, or collateral consequence.

Venue, related charges, and civil exposure

Effective August 1, 2026, subdivision 8 permits prosecution in the county where the offense occurred, where the accused or alleged victim resides, or—if venue cannot be located there—where material was produced, reproduced, found, stored, received, promoted, disseminated, or possessed. The official enactment is 2026 Minnesota Laws chapter 118, article 5, section 3.

Venue still must be proved. Cloud storage, travel, remote users, and multijurisdictional production can create factual disputes about when and where acts occurred and which version of the law applies.

Related charges can include possession or dissemination under section 617.247, criminal sexual conduct, solicitation, electronic solicitation, invasion of privacy, nonconsensual dissemination, coercion, trafficking, computer offenses, and federal crimes. Each charge requires its own elements and proof.

Minn. Stat. § 617.245 (2026) creates a civil action for injury caused by use of a qualifying minor in a sexual performance. Civil definitions, age requirements, limitations rules, and burdens should not be assumed identical to the criminal statute.

A criminal defense strategy should consider parallel civil claims, orders for protection, family-court issues, licensing investigations, and federal interest. Statements in one forum can be used in another, so coordination matters.

Defense issues in a Minnesota use-of-a-minor case

No legally defined performance or material. The depiction may not contain a listed form of sexual conduct, may not be lewd, may lack an exhibition, or may not satisfy the clause charged.

No prohibited act. The accused may not have promoted, employed, used, permitted, owned, operated, reproduced, or disseminated as alleged. Association and device ownership are not substitutes for the charged verb.

Insufficient knowledge. Automated systems, shared access, false labeling, employee conduct, compromised accounts, or incomplete communications may create reasonable doubt about knowledge and reason to know.

No profit connection. A subdivision 4 charge requires dissemination for profit. Unrelated revenue or a free exchange may not prove that element.

Adult-only production. Evidence that only adults were used can support the express affirmative defense. Source records and reliable age verification should be preserved.

Misidentification or digital attribution. Accounts, addresses, payment instruments, and devices can be shared or compromised. The evidence must identify the actor, not merely a subscriber.

AI or alteration clause not proved. The State may be unable to establish an identifiable minor, indistinguishability, the alleged generation method, obscenity, or the defendant’s connection to production.

Unlawful search or statement. A warrant may lack probable cause, nexus, or particularity; execution may exceed its scope; or a custodial statement may have been obtained in violation of constitutional rights.

Venue, timing, or ex post facto issue. The State must prove a legally authorized county and apply the law effective when the conduct allegedly occurred. Later amendments cannot retroactively increase punishment.

Multiplicity or multiple punishment. Numerous counts may describe the same act or course of conduct. The defense should test the legislature’s authorized unit of prosecution and section 609.035.

What to do after an accusation, warrant, or device seizure

First, do not contact the alleged victim or witnesses. Even a well-intended apology, request for context, or demand to retract can be characterized as intimidation, consciousness of guilt, or a no-contact violation.

Second, preserve evidence without opening or redistributing suspected unlawful material. Save lawful communications, account notices, contracts, age-verification records, receipts, device lists, and names of people with access. Let counsel and a qualified examiner handle contraband-sensitive review.

Third, write a private chronology for counsel: devices, accounts, users, business roles, travel, passwords shared, sales, cloud services, prior police contacts, and when you first learned of the allegation. Do not post the chronology or send it to friends.

Fourth, identify urgent collateral issues. Employment suspension, professional reporting, family-court orders, immigration deadlines, travel, registration questions, and platform preservation periods can require prompt coordinated advice.

Finally, obtain the complaint, warrants, affidavits, inventories, interview recordings, forensic reports, provider returns, and original media through lawful discovery. A defensible strategy begins with the complete evidence and the exact subdivision—not with the investigator’s summary.

Frequently asked questions