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Wednesday, February 12, 2014

Americas Misguided Child Pornography Laws Do Little to Protect Children, but Plenty to Fund the State, the Feds and the Victims Advocate Groups


In 2013 the Virginia Criminal Sentencing Commission studied the inconstancies in our code with those who view/possess/reproduce (forward it to someone else) child pornography images mandating longer sentences than those who produced/created the images and actually abused the children. After months of work and 4 public meetings the VCSC voted to lower the sentences by a very small amount for those who possess such images (Recommendation #2). This was the first time in 19 years of the VCSC existence that they have ever recommended lowering a sentence and as soon as it was announced PROTECT pounced with this report vowing to stop the decrease from occurring. 

Out of the five 2013 VCSC recommendations there was an increase in the on-line solicitation of a minor (Recommendation #1) and PROTECT had no issue with the VCSC raising a sentence but when it came to lowering a sentence they rushed to find a Delegate (Bell-HB504) and a Senator (McDougle-SB433) to patron companion legislation to stop the decrease from occurring. 

Why? Well, I’ve posted about it before if you’re interested. 

There is a lot of money at stake in the prosecution, incarceration, restitution, probation, therapy and monitoring of those who possess child pornography. Federal grants, State grants, Annual  Budgets, Civil Restitution, Seizure of Personal Property, Prison bed quotas, local communities depending on prison jobs, Therapy Providers, Polygraph Examiners, Probation Officers, Halfway Houses, GPS Fees, Dept. of Social Services, VSP Sex Offender Compliance Officers and the list goes on and on. Viewers of Child Pornography are being squeezed for every last dime similar to the adults who smoke cigarettes and chew tobacco products, tax them for schools, tax them for new roads, tax them for daycare centers. No one is going to stick up for “those vial smokers”, just like Sex Offenders. 

If the government went after the websites and the producers of the Child Pornography then there would be no viewers/customers, no industry at all. But they don’t! Our Government continues to go after the viewers/customers because they are the “cash cows” and keeps the money flowing for all the groups listed above. 

Now HB504 and SB433 will pass through the 2014 Virginia General Assembly and most likely be signed by the Governor and the first positive step in 15 years of draconian laws aimed at the viewers (customers) and not at the producers (abusers) will never be implemented. And the VCSC will probably rethink ever recommending a decrease in sentencing ever again at least when it comes to Child Pornography and THAT is the real wrongdoing in all of this.  

Here are 2 great articles by the same writer about these misguided laws.

Mary Devoy

Our misguided child porn laws do little to protect children
By Jacob Sullum               February 11, 2014

In the letter he wrote on the day he hanged himself last month, Ryan Loskarn talked about the shame and guilt he felt after he was caught with child pornography. Loskarn, former chief of staff to Sen. Lamar Alexander (R-Tenn.), did not mention fear of prison, perhaps because he had already resolved to end his life. But for anyone in his position who planned to stay alive, the prospect of spending years behind bars would loom large. 

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. 
 

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking. 

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. 

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. Is that true? The USSC found, based on criminal records and additional information in presentencing reports, that one in three federal defendants sentenced for non-production offenses in the previous decade had known histories of “criminal sexually dangerous behavior” (including prior child pornography offenses). 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. 

Why would anyone look at this horrible stuff if he was not inclined to imitate it? Troy Stabenow put it this way in a 2009 interview with ABA Journal: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder. That doesn’t mean that they’re going to go out and commit torture and murder.” 

Dean Boland, an Ohio defense attorney specializing in child pornography cases, says a substantial share of defendants were themselves victims of sexual abuse as children and look at these images as a way of working through the trauma. That is how Ryan Loskarn explained his attraction to child pornography. “I found myself drawn to videos that matched my own childhood abuse,” he wrote. “I pictured myself as a child in the image or video. The more an image mirrored some element of my memories and took me back, the more I felt a connection.” 

Taking Loskarn at his word (and what is essentially a dying declaration probably should be given considerable weight), he not only had no desire to abuse children; he was not even titillated by the videos he collected. It hardly makes sense to treat someone like that as a criminal, let alone one who deserves to spend eight years in prison (the average sentence for non-production child porn offenders). 

In fact, it is not clear why mere possession of child pornography should ever be grounds for locking people in cages. The Supreme Court’s main rationale for upholding the ban on possession was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess “sexually obscene images of children” — production of which need not entail abuse of any actual children — face the same heavy penalties. “They are not protecting a single child,” Boland says. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.”


Looking vs. Touching: Is Possession of Child Pornography a Crime Worthy of Years in Prison?
By Jacob Sullum               February 12, 2014

Amy was 8 when her uncle began raping her. He took pictures. Last month the Supreme Court considered what restitution Amy is entitled to collect -- not from her uncle, but from a man, Doyle Paroline, who downloaded two of those pictures.  

The potential answers to that question range from zero to $3.4 million. According to The New York Times, the justices seemed "stumped." Their confusion reflects a deeper problem with the justification for criminalizing possession of child pornography, an offense for which legislators have prescribed increasingly harsh penalties with little regard to sense or justice.  

Amy's lawyer puts the past and future cost of her sexual abuse, including lifelong psychotherapy, an interrupted college education and reduced earning capacity, at $3.4 million, some of which is attributable to her knowledge that images of her uncle's crimes are circulating on the Internet. As Justice Antonin Scalia observed during oral argument in the case, Amy "has undergone serious psychiatric harm because of her knowledge that there are thousands of people out there viewing her rape.'' 

Yet it is no easy matter to allocate responsibility for that harm under a federal law that requires a defendant to pay his victim "the full amount of the victim's losses." Under a theory of joint and several liability, Amy's lawyer argued that Paroline should be on the hook for the full $3.4 million. Paroline's lawyer argued that he owes her nothing because downloading the pictures her uncle took was not the proximate cause of her suffering.  

In between those two extremes, Deputy U.S. Solicitor General Michael Dreeben said judges should assess restitution on a case-by-case basis. Another possible approach: If you divide $3.4 million by the estimated 70,000 people who have seen images of the crimes committed by Amy's uncle, the result is less than $50.  

None of these solutions is very satisfying. Once images of sexual abuse have been viewed 1,000 times, Justice Samuel Alito wondered, is it even theoretically possible to assess the damage caused by the 1,001st viewing?  

The difficulty of deciding exactly what harm Paroline has done to Amy raises the question of why possessing child pornography is treated as a crime that merits years in prison. As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.  

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years. Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, swapping photos or possessing more than 600 images (with each video counted as 75 images). The maximum penalty is 20 years. By comparison, Amy's uncle served 10 years for what he did to her.  

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess "sexually obscene images of children" -- the production of which need not entail abuse of any actual children -- face the same heavy penalties.  

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children." Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.  

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack. Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.