I have a case with the following fact pattern: Biological father goes into his 12 year daughter's room at night (on multiple dates over about a year) and puts his penis on her lips and her hand around his penis. He takes photos of these acts on his cell phone. We have the photos and we have a confession from the dad. The unique part of this case is that daughter is asleep in these photos (or at least pretending to be asleep). She cannot (or won't admit to) remembering what her father did. I am already going to charge him with a count of continuous sexual abuse--our cell phone expert can date the photos for our underlying offenses of agg sex assault and indecency by contact. I had also charged him with promotion of child pornography, however that means I have to qualify a jury on probation. In an attempt to avoid that, I am considering charging him with sexual performance by a child for the photos. Has anyone ever charged a defendant under that statute when the child is unaware that the conduct is happening? It seems like the statute should still apply...

Any ideas would be welcomed!

Why don't you just get rid of the Promotion of Child Porn? Then you don't have to worry about probation.

I think the facts themselves are damming enough to convict him of Continous Sexual Abuse and since that is 25 to Life without parole, that should be a big enough hit. Keep it simple for the jury.