A Reluctant Rebellion
A Reluctant Rebellion | ABA Journal - Law News Now.
“Laws are tough on child pornography. But some federal judges think the time isn’t fitting the crime.”
This is an excellent, comprehensive and well thought out Article but it misses some key points. Those who argue against the long sentences give versions of the same story:
“The problem with the guidelines, according to Stabenow [A Study, “Deconstructing the Myth of Careful Study” (PDF) was conducted by Troy Stabenow, a former military prosecutor, and alleges serious flaws in the US Sentencing guidelines] and a growing chorus of critics, begins with the severity of the penalties. Possessing even one illegal image is a felony punishable by up to 10 years in prison. Receipt, transportation, distribution and production all carry a mandatory minimum five-year sentence and are punishable by up to 20 years in prison.
Some of those penalties have been increased in an effort to go after what the commission called the “most dangerous” offenders, a group it has defined as repeat sexual offenders and producers of child porn. But according to Stabenow’s analysis, nearly 80 percent of all child porn defendants in 2006 had no prior felonies of any kind, let alone a history of sexually abusing or exploiting a child. And only 5 percent of all child porn defendants in 2007 had been charged with production.”
The problem, however, is that the purchasers, downloaders and traders of pornographic images, by their actions are soliciting and paying for truly horrific acts. Think of it this way. If one of these upstanding citizens walked into a room and paid to have someone else perform a live sex show with a child, how would you punish them? And that is the key. Where do people think these “images” come from? This is not a victimless crime. When someone pays for porn the are not merely “supporting” the “industry” they are essentially pooling their money to pay all of the costs and profits for that “image” to be produced. They are soliciting and purchasing the crime, not just the image. When viewed from that perspective the punishment is understandable and merely because the criminal doesn’t see it that way is not a reason for society to view it differently.
Now, that being said, there are levels of “intent” recognized by our justice system that should rightly be taken into account. A person who downloads images of people who look like adults, but turn out not to be, may be “less guilty” than another downloading more heinous material. A person who downloads a single image and shows remorse may be less guilty than one who has hundreds of images, distributes as well as downloads and shows little real remorse. But this is not about a consenting adult in the privacy of their own home viewing another consenting adult. Children do not consent to pornography.
There is also great emphasis on the fact that the guidelines for sentencing of child porn are influenced by political pressure and that this causes injustice. The problems with the Sentencing Guidelines are generally well documented, but the political pressure on the guidelines comes from both sides of the argument and is generated by real concerns. On one side the problems outlined in the article generate concern, along with the prosecutorial excess that the guidelines often encourage or tacitly condone. Prosecutors make points by “throwing the book” at people who may be merely foolish, sad addicts with no evil intent. On the other hand the political pressure that generated the guidelines in the first place, not that long ago, arose because many judges were failing to give just punishment to people who were committing worse and worse offenses after getting lenient sentences. Political pressure on the law does not arise in a vacuum.
It would be a mistake to discount and reduce sentences based on the argument that repeat sexual offenders and producers are the “real” criminals. In the context of Child Porn – the customers are guilty too and most of them know what they are buying.
People who should be charged as sex offenders are, for instance, parents who use thier child's phone to send inappropriate photos of their daughter's naked classmate to people. To that I say bring on the front yard sign and protesting neighbors. I think humiliation is highly effective aspect of punishing these people.
Posted by: Mollie | November 21, 2009 at 02:19 PM
Mollie,
I agree that "sexting" between kids is not generally chargeable as a sex offense in many cases. I guess its one modern method of kids sexual experimentation. Kids do need to be told of the dangers. Cyber images are not private and thus the punishments by schools, parents and police need to be calculated to emphasize the dangers not just punish inappropriate behavior. No a 16 yr old kid should not be charged as a sex offender and sent to an adult prison. But if he takes advantage of a girl and shows it to his friends and publishes it on the net, he needs a harsh reminder not a slap on the wrist.
Posted by: JR | November 19, 2009 at 11:59 AM
Child porn has been around for a long long time. And punishment is due to those involved in any manner. But how should the law cope with the new "sex-ting" craze in schools. Students sending racy and inappropriate pictures to one another. I read of a case where a 15 year old girl sent her 16 year old boyfriend photos of herself, and they arrested him for child pornography.
I am not advocating students doing this at all, but should that boy really be charged as an adult sex offender? Or should the school, parents and police get together to come up with the right kind of punishment that ensures the boy does not go to an adult prison for a stupid, ill-informed teenage mistake?
Posted by: Mollie | November 17, 2009 at 11:51 AM