There’s a growing discussion among those who observe the effects of the harsh punishment meted out by our black-and-white justice system on the people who are the subject of these zero-tolerance laws: the similar treatment of those who engage in sexual behavior with children and those who, without ever touching a child, view pictures and videos of children in sexual situations or engaging in sexual acts.
In other words, people are starting to realize that the two situations are disparate and should be treated as such. For one thing, the federal sentencing guidelines are over-the-top and maddeningly inconsistent. For instance:
An extensive U.S. Sentencing Commission study of child pornography sentences in 2012 found that current federal guidelines produce “overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.”
As Jacob Sullum recently wrote in the Washington Post:
The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos. Federal agents reportedly found 200 child porn videos on Loskarn’s hard drive when they arrested him on December 11.
Ninety percent of federal child-porn prosecutions involve “non-production offenses” like Loskarn’s: downloading or passing along images of sexual abuse, as opposed to perpetrating or recording it. As a result of congressional edicts, the average sentence in such cases rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). The penalties have become so severe, the commission noted, that judges frequently find ways to dodge them, resulting in wildly inconsistent sentences for people guilty of essentially the same conduct.
As I’ve written extensively, I am of the opinion that there is a significant difference between those who harbor thoughts of sexual contact with children and those that act on it.
As someone who has represented individuals accused of both – having sexual contact and merely viewing child pornography – I can tell you that there is a difference in the type of personality. The latter are more frequently than not what we call in the business “mopes”. Individuals with severe mental health issues, several AXIS-I diagnoses and limited social functioning skills. They wouldn’t be a risk to molesting children even if they weren’t so afraid of their own shadow.
But I do understand the need to punish viewers of child pornography, even though the old rationales for doing so may no longer be applicable:
While the original justification for criminalizing possession of child pornography was that demand creates supply (an argument that has been weakened by the shift to free online distribution), the escalation of penalties seems to be driven largely by the assumption that people who look at these images are all undiscovered or would-be child molesters.
Tracking 610 defendants sentenced in fiscal years 1999 and 2000 for eight and a half years after they were released, the USSC found that 7 percent were arrested for a new sexual offense.
Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.
The real question is whether we need a sentencing scheme that treats the two classes of offenders the same or one that is slightly more nuanced, allowing for individualistic sentencing determinations and building in safety valves for those who may mistakenly come in contact with child pornography or, for the sake of argument, intentionally download a video “just to see what it’s about”.
It’s obviously a trick question. It’s what we should do, whereas we do exactly the opposite in reality. For instance, possessing child pornography in the first degree is a class B felony carrying a sentence of 5-20 years. This is for “50 or more visual depictions”, which is, according to Federal statutes, not quite one video.
Now there’s a new bill in CT that seeks to make “technical changes” to the child porn laws, but in reality, does a whole lot more damage.
See, the technical changes they propose (as outlined in the written testimony submitted by the State’s Attorney’s Office [PDF]) is to eliminate a “loophole” whereby videos are counted as single ‘visual depictions’.
On the surface, it’s an understandable change: is it really fair to treat one video the same as one still image? Perhaps not.
But in the quest to bring ‘modernity’ to our child porn laws, the bill makes one dangerous change: it eliminates the affirmative defense for any quantity of videos.
In other words, in CT, it will no longer be possible to say “I accidentally downloaded one video”. Here’s the affirmative defense statute, with relevant proposed changes:
In any prosecution for a violation of section 53a-196d, as amended by this act, 53a-196e, as amended by this act, 53a-196f or 53a-196h it shall be an affirmative defense that (1) the defendant (A) possessed fewer than three visual depictions, other than a series of images in electronic, digital or other format which is intended to be displayed continuously, or a film or videotape, of child pornography, (B) did not knowingly purchase, procure, solicit or request such visual depictions or knowingly take any other action to cause such visual depictions to come into the defendant’s possession, and (C) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof, took reasonable steps to destroy each such visual depiction or reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction, or (2) the defendant possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.
In other words, you simply cannot, evermore, say you accidentally downloaded a video. It doesn’t matter if you did accidentally download it, or unknowingly clicked on a video that happened to be child porn. You are guilty and will be subjected to 20 years’ maximum punishment in jail.
Who the hell “accidentally” downloads child porn, you ask? It’s not who does, but who can.
You can. Right now. It’s easy. The web is a massive place. Remember that when it comes to “child” porn, the “child” is under 18, not under 16, which is merely the age of consent.
You could be like 28,000 Americans viewing porn every second. Or you could be one of seventy-five percent who say they’ve viewed porn “accidentally”. Or you could be one of – I’m sorry, are you ready? – 450 MILLION MONTHLY visitors to porn sites.
Now, most of these are “legit” porn sites that are required to keep records of the age of the models and their legal status. But do you ever check? Do you know? You just assume and presume. But what if you happen to watch one that isn’t legal? Did you do that intentionally? Under our new law, it doesn’t matter.
What about someone who isn’t looking for pornography at all, but is tricked by someone else into downloading it? Have you heard of being Rick-Rolled? It’s very easy to imagine someone playing a joke on you and sending you a link to child porn. Have you watched child porn intentionally or accidentally? Under our new law, it doesn’t matter.
Or what about something less nefarious? What of someone who is looking for the most recent ‘cats-after-a-bath’ video and finds something that ends up being child porn? Remember Julie Amero who accidentally downloaded porn to her classroom computer? Clicked on a .gif that turned out to be a slightly underage woman performing a sex act? Too bad. Under our new law, it wouldn’t matter.
Oh, what if you’re a teenager, engaging in this new act of “sexting”? You know, you send your also underage girlfriend a picture of your one-eyed-monster? Are you suddenly both guilty of a 20 year felony?
The thing is, the law is designed to protect the actually innocent: those who unknowingly download contraband. That’s why it’s an affirmative defense: the burden is on the defendant to prove not only that he possessed a minor amount of pornography, but also that it was downloaded accidentally and unintentionally.
This “technical” change to our child pornography law would eliminate the ability of anybody, no matter how accidentally they acquired pornography, to escape a five year mandatory minimum jail sentence.
You might want to lock up your computer after you finish reading this post.
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