The topic for today is child pornography, and more
particularly, the federal crimes of possession, receipt and distribution of
child pornography. These crimes –
arising as they do from the victimization of children for the sexual
gratification of adults – are among those that understandably incite the
strongest of emotional reactions.
Even so, it is important to differentiate between those who
create child pornography and those who receive and view it or share it with
others. The creation of child pornography
is essentially a violent crime in which a person sexually assaults a child and
records that assault in photographs or videos.
By contrast, the crimes of possession, receipt and distribution of child
pornography are not violent crimes in and of themselves. Oftentimes, the images that are being viewed
and traded were created years or even decades before. This is not to minimize in any way the
emotional trauma that victims suffer knowing that these images are in
circulation. However, few would argue against
punishing the crimes that resulted in the creation of the images – the violent
sexual assault of children – significantly more harshly than the viewing or
trading of the images years later.
Federal prosecutors often argue that child pornography
offenses are “gateway” crimes at the beginning of a trajectory that always
leads to child sexual assault. Others contend
that most of those who commit child pornography offenses have also committed
unreported contact offenses against children.
The reality appears to be quite different from this alarming picture,
however. The study upon which the
government often relies to argue that most child pornography offenders have
previously molested children has been criticized as deeply flawed. In that study conducted by the federal Bureau
of Prisons, inmates participating in a sexual offender program were asked to
self-report prior contact offenses, but were threatened with removal from the
program and return to the general prison population if they failed to “truthfully”
self-report. Independent researchers
have criticized this coercive methodology as tending to lead to over-reporting
of prior contact offenses by program participants. Moreover, studies of recidivism among child
pornography offenders suggest a contact sexual re-offense rate of approximately
thirteen percent over a four or five year period.
The increase in child pornography prosecutions in the
federal criminal justice system over the past decade has been quite
extraordinary. In my view, the growth
rate is attributable to several interrelated factors. First, child pornography is more accessible
now than ever before due to its availability on the Internet. When pornography was only available in
physical form – on paper or VHS tapes for example – only those with a real
predilection for sexually explicit materials involving children went to the
trouble to acquire it. It has been my
experience in handling child pornography cases in the Internet age that most of
my child porn clients do not have a clear preference for child
pornography. Rather, they enjoy
pornography generally and child pornography is only one of any number of categories
of pornography that they will view, collect or share.
Something that was surprising to me when I began handling
these cases is how easy child pornography is to find online. Indeed, the ease of acquisition of child
pornography, and the fact that it is often found alongside other types of
perfectly legal pornography, often lull users either into believing that what
they are viewing is legal or that the consequences of viewing it are less
severe than they really are. As a result and as psychologists recognize, there is a significant cohort of people who look at child pornography
who would more appropriately be characterized as pornography addicts than as
pedophiles.
The availability of child pornography online and the
concomitant increase in those who now have access to it is only one part of the
explanation of why child pornography prosecutions have increased so
dramatically. A second factor is how
easy they are to prosecute. Although
federal prosecutors have an ethical obligation to “do justice,” they are still
evaluated based upon their “productivity,” which really means the numbers of
indictments and lengthy sentences they obtain.
Child pornography offenses are easy to prosecute because the data trail
is so simple to follow. Federal agents
can identify the IP addresses of those who access child pornography and then
use their subpoena power to find the owners of those IP addresses. Forensic analysis of a computer associated
with an IP address that confirms the presence of child pornography makes the
case easy for the prosecutor. Because
child pornography offenses are so emotionally fraught, prosecutors have little
incentive to exercise their prosecutorial discretion in any way that benefits a
child porn offender.
As is often the case, politics also play a role. Candidates for national political office have
long known that advocating for longer sentences generally – and for child
pornography sentences specifically – is a vote-getter. At the federal level, there is little concern
for the cost of ever-increasing criminal sentences; the same is not true at the
state level where balanced-budget amendments come into play. Because of these political pressures,
sentences for child pornography increasingly have been ratcheted upward such
that now most federal child pornography offenders are subject to sentencing
ranges that reach or exceed twenty years of imprisonment. Parole has been abolished in the federal
system, so a federal offender can expect to serve about 85% of his sentence
after receiving credit for good behavior.
Because violent crimes are usually still prosecuted by the states, however,
where sentences are generally lower and parole still exists, it would not be
unusual for someone who had committed a contact offense against a child to
serve a state sentence that was lower than that imposed for a federal child
pornography offense. Putting it bluntly,
the guy who raped a child to make the porn could easily serve less time than
the guy who looked at the pictures years later.
I have actually seen this occur in some of my own cases.
Proportionality is an important factor in ensuring the
fairness of our criminal justice system.
In simplest terms, proportionality means that those who do worse things
should get longer sentences. Sentencing
in child pornography cases often violates this fundamental principle. Unfortunately, lowering sentences for child
pornography offenders is political suicide.
Nonetheless, I hope that Congress will look at reducing sentences in
these sorts of cases as part of its review of overcriminalization that I
discussed in an earlier post. In the
meantime it is incumbent upon criminal defense lawyers to continue our zealous
advocacy in these cases and to point out the flaws in the system to the courts.
