UF Quarterback Arrested for Child Pornography
December 9, 2022 Don Pumphrey, Jr. College, Criminal Defense, News & Announcements, Sex Crimes Social Share
When it comes to sex crimes, the state of Florida prosecutes cases harshly. This is especially true when the sex crimes involve minors. A person who is accused of possessing or distributing child pornography can lead to extensive penalties that could last the rest of their life.
In a recent Florida case, a University of Florida athlete has been indefinitely suspended after getting arrested for possessing child pornography. We will provide details from the case, along with information on child pornography charges in Florida.
What was the Case?
UF student Jalen Kitna, 19, was arrested on November 30th, 2022, after being accused of possessing and sharing child pornography on the internet. Kitna faces five felony counts of possessing or distributing child pornography in Alachua County.
According to the report, the investigation began back in June when the National Center for Missing and Exploited Children received a tip from the instant messaging platform Discord.
Kitna is the son of former NFL player Jon Kitna and was the backup quarterback on the University of Florida’s football team. After the arrest was announced, Kitna was indefinitely removed from the team.
The court records explain that Kitna’s discord account shared two images of underage girls in graphic sexual positions. In a criminal case, this is often referred to as child sexual abuse material (CSAM). When police questioned Kitna about the images, he told officers that he visited online chat rooms that discussed and solicited CSAM, but that he, “tries to shy away from it.”
Kitna also told authorities that he had been struggling with his interest in child pornography and images relating to incest. He then stated that his pornographic preferences were with individuals around his own age.
“He later clarified and advised that he doesn’t prefer anyone younger than 16,” the court records stated. When asked how the illicit images were downloaded, Kitna answered that he, “might have accidentally clicked on a link he shouldn’t have.”
Caleb Kenyon, Kitna’s attorney, argued that the images depicted made it difficult to tell if the girls portrayed were under 18 or not. In one image, a girl was shown kissing the cheek of another while cupping her breast. Kenyon argued that they could be considered child erotica rather than child pornography, which is not illegal.
However, the court documents indicated that the images were far more sexually graphic, even being labeled as “junior” to warn that the girls were young. Police have not yet addressed if they found the identities of the girls in the images. There was also documentation of a Discord chat room where Kitna and an unknown internet user were talking about the images.
One of the unknown users asked Kitna, “Are they under 18?” To which the unknown user then responded “Bruh…Noooo.”
Kitna was arrested outside of his off-campus apartment complex in Gainesville, where witnesses recalled a “flurry of police activity.” Kitna was presented with a search warrant around 7:40 am, and after only 30 minutes they took him down to the jail where he was formally booked.
Keyon requested that the judge release Kitna without any bond, arguing that no one was directly victimized by his client’s conduct. “We’re talking about a crime that can be done with two clicks of a mouse,” Kenyon said.
However, Alachua County Court Judge Meshon T. Rawls set Kitna’s bond at $80,000 for the collective five charges against him. Rawls ordered Kitna to not have any unsupervised contact with minors and to refrain from using the internet. If convicted, Kitna could face up to 45 years in prison and up to $35,000 in fines. The State Attorney’s Office is expected to determine the formal criminal charges in the coming weeks.
Kitna was released on the $80,000 bond on Thursday, just hours after his first court appearance. Kitna’s parents testified that they would return to their Texas home with their son and accompany him to any future court dates.
Alachua County Sheriff’s spokeswoman Captain Kaley Behl addressed the measures being taken with the case’s publicity. Due to Kitna’s high profile and the nature of the charges against him, authorities took extra time with reviewing the paperwork and censoring any sensitive details before releasing it to the public.
“They wanted an extra level of review, they have the right to do that,” Behl said. Due to the booking records including the online websites Kitna visited, along with other information that could interfere with the investigation, the department was able to withhold some of the contents from being released to the public.
The University of Florida gave the following statement to Sports Illustrated regarding Kitna’s arrest:
“We are shocked and saddened to hear of the news involving Jalen Kitna. These are extremely serious charges and the University of Florida and the UAA have zero tolerance for such behavior. Jalen has been suspended indefinitely from the football program.”
Discord and PhotoDNA
Police officers seized Kitna’s iPhone, and after retrieving his password they discovered three more images they considered to be CSAM. The images had been downloaded in December 2021, according to the court records. Kitna admitted to sharing two images he believed to be legal over Discord. Once the images were sent, Discord’s automatic red alert reported the images to law enforcement.
Discord is an online social media service, popularly used by gamers while streaming their live gameplay. The site offers a chat feature, in which users can send messages or media files to each other.
According to Discord’s terms of safety and services, when a Discord user reports an incident in the chat, the Trust & Safety team will review and gather as much information as possible. A typical investigation is focused on the reported messages themselves but can be expanded further if the team believes a larger violation has occurred. Discord’s site explains it focuses on the “worst-of-the-worst content” like non-consensual pornography, sexual content related to minors, and violent extremism.
Discord uses a system called PhotoDNA, which alerts the Trust & Safety team to investigate reports of user violations. Any confirmed cases are then forwarded to the National Center for Missing and Exploited Children “NCMEC.” From there the appropriate law enforcement agency will be notified.
Gainesville police reported that “NCMEC” notified the station on July 8th, of the tip tracing the online activity back to Kitna’s apartment. Kitna was currently sharing the apartment with other UF football players. Although Discord had the chat messages between Kitna and the unknown user, the other person will not be prosecuted.
This is because the other user did not request the images, and immediately showed disinterest and disapproval with the images Kitna allegedly sent. Police have since reported that they do not believe the other user was a friend or UF teammate.
Possession of Child Pornography in Florida
Charges for the possession of child pornography fall under Florida Statute section 847.001(3), in which “child pornography” is defined as any image or video depicting a minor under the age of 18 that is engaged in sexual conduct of any kind. The images can be downloaded from the internet or obtained through online websites.
“Sexual conduct” is defined under Florida law as any of the following:
- Sexual intercourse
- Simulated sexual intercourse
- Deviated sexual intercourse
- Sadomasochistic abuse
- Sexual bestiality
Section 827.071(5)(a) of the Florida Statute states that each image of CSAM found on the accused person’s device or person can be separately prosecuted. For example, Kitna possessing five images of CSAM could result in five separate possession of child pornography charges. In addition, images containing multiple children could always result in charges for each child depicted.
To learn more about accessing Child Porn on the Internet, read our informative blog here.
Child Pornography vs Child Erotica
One possible defense to a child pornography charge is that the images were actually child erotica. According to the Florida Department of Law Enforcement (FDLE), child erotica is defined as children displayed in images nude or partially nude, posed in a manner that does not meet the criteria for sexual conduct. Because child erotica does not contain sexual conduct, it is not illegal. A common term used in child erotica is “Lollys” which refers to “Lolita” or young girls.
Child pornography can be distinguished from child erotica when it is not “sufficiently lascivious to meet the legal definition of sexually explicit conduct.” For example, a child in a bikini or posed in an erotic position may be referred to as child erotica.
The law suggests that child pornography and child erotica are the same, but they are not. This often leads to child erotica overlapping with child pornography evidence and can still lead to accusations of child pornography—which could lead to being arrested and investigated for further illicit images.
However, the prosecution must be able to prove beyond reasonable doubt that there was a violation by possessing or sharing images with lascivious exhibition. Otherwise, it is highly unlikely for child erotica to be the sole factor in obtaining a search warrant for a child pornography investigation.
Case Law Regarding Child Erotica
In one example case titled United States v. Paul D. Edwards, Edwards was charged with possession of child pornography. The defendant was convicted after the case’s affidavit addressed that individuals with child pornography are likely to join online forums and possess child erotica as well. Edwards appealed the conviction, on the grounds that the prosecution lacked sufficient probable cause since child erotica is legal. The appeal was denied, but the court found that the affidavit failed to establish probable cause that child porn would be found in the defendant’s home. Since the court still addressed the issue, this case is important because it shows that child erotica does not by itself give rise to probable cause.
In another case, the federal court in Thomas v. U.S., found that an officer finding images of child erotica in a defendant’s computer grants them enough probable cause to seize the computer while the prosecutor gets a warrant to conduct a search because child erotica images are normally linked to websites and other images of child pornography. A detective in the case testified that in his experience, child erotica and child pornography are often comingled on websites and that he had never had a suspect with child porn who did not also have child erotica in his computer.
Therefore, even if legal, child erotica can be dangerous—as it gives investigators cause to believe that illegal content could be found.
What is Prima Facie Evidence?
Florida law explains that possessing at least three images of child pornography or CSAM is considered “prima facie” evidence in a child pornography case. This means that a judge will accept the evidence as correct until proven otherwise.
According to Cornell Law, a prima facie case would be the establishment of a legally required rebuttable presumption, or the cause of action or defense that is sufficiently established by a party’s evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.
When dealing with a child pornography case, a defendant in the possession of three or more copies of photographs, motion pictures, representations or presentations of sexual conduct by a child is considered prima facie evidence of intent to promote, as codified under Florida Statute section 827.071.
Penalties for Child Pornography Charges
A defendant in the possession of child pornography can be charged with a third-degree felony in Florida. A third-degree felony has penalties of up to a $5,000 fine and up to five years in prison. However, additional federal charges may be placed on the defendant for downloading CSAM onto their computer or device.
A defendant who is accused of distributing child pornography can be charged with a second-degree felony in Florida. A second-degree felony has a penalty of up to a $10,000 fine and up to 15 years in prison.
A defendant who is accused of producing or promoting child pornography can be charged with a first-degree felony in Florida. A first-degree felony has penalties of up to a $10,000 fine and up to 30 years in prison. This type of violation carries the mandatory minimum sentence of 5-13 years.
Registering as a Sex Offender
In addition to paying fines and imprisonment, a defendant convicted of possession, distribution, or production of child pornography will be required to register as a sex offender in Florida. A sex offender is an individual who was convicted of a specific sex crime in Florida and was released from their sanction on or after October 1st, 1997.
Depending on the severity of the case, a sex offender registration can last on a person’s record for anywhere between 15 years, 25 years, or for the rest of the person’s lifetime. To find out more about the requirements and specifics around Florida’s Sex Offender Registry, read our page here.
Defending Against the Charges
Creating a defense for a child pornography case can seem extremely difficult, especially considering how harshly the State of Florida prosecutes child pornography charges. However, that does not mean it is impossible. Due to the nature of the internet, it is possible for an individual to accidentally click on a link that leads to unwanted CSAM.
An experienced defense attorney may advise working with a computer forensic expert. In a child pornography case, an expert witness can help prove the defendant did not intentionally obtain or possess the CSAM. The expert can do so by analyzing the device and conducting an investigation just as the police did. The expert may check for any computer viruses, trojans or computer worms, or backdoors created by other users.
Read our other blog posts to find out more about Defenses to Child Pornography Charges or How Can Digital Evidence Affect a Child Pornography Criminal Case?
Finding a Defense Attorney in Tallahassee, Florida
If you or someone you love has been accused of possession of child pornography charges, it is imperative to seek out the help of a legal professional. Child pornography charges are some of the harshest in the State of Florida, and a conviction can result in life-altering consequences.
Criminal defense is important for Florida citizens of all ages. In the example case listed above, Kitna is a 19-year-old with no prior convictions. However, if convicted of the charges against him he could be facing years in prison, expensive fines, and registering as a sex offender for the rest of his life. Working with an experienced defense attorney is your best chance at fighting for your freedom.
Contact Pumphrey Law Firm today – Don Pumphrey and his team have years of experience representing clients of all walks of life. We vow to stand in your corner and fight for your future. Contact us today for a free consultation at (850) 681-7777 or leave an online message on our website.
 775 Fed. Appx. 477 (11th Cir. 2019) (unpublished)
Written by Karissa Key