Disentangling child pornography from child sex abuse.

Author:Hessick, Carissa Byrne
 
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TABLE OF CONTENTS INTRODUCTION I. THE MODERN TREND OF INCREASED SENTENCES II. SCRUTINIZING THE ARGUMENTS IN FAVOR OF INCREASED SENTENCES A. Pornography as Abuse or Worse than Abuse 1. Identifying the Argument 2. Problems With the Argument B. Preventative Punishment 1. Identifying the Argument 2. Problems With the Argument C. Proxy Punishment 1. Identifying the Argument 2. Problems With the Argument III. UNINTENDED CONSEQUENCES OF EQUATING CHILD PORNOGRAPHY WITH SEX ABUSE A. Misperceiving Child Sex Abuse as a Stranger Crime B. Misperceptions About Law Enforcement Statistics IV. TENTATIVE SUGGESTIONS FOR REFORM A. Legislative Reforms B. Judicial Solutions CONCLUSION INTRODUCTION

Child pornography was first identified as a serious problem in the 1970s. Due to aggressive law enforcement, the widespread distribution of child pornography had essentially ceased by the late 1980s. (1) But the birth of the Internet and other technological advances, such as digital photography, led to a dramatic increase in the availability of child pornography and rendered obsolete past enforcement techniques for detecting child pornography. (2)

The legislative response to the modern increase in child pornography has been uniformly draconian. state and federal governments have drastically increased the criminal penalties for possession of child pornography. The rhetoric surrounding the increased sentences suggests that this new severity is tied to a perception that those who possess child pornography are indistinguishable from those who actually abuse children. This rhetoric takes several forms. some argue that penalties for possession of child pornography should be increased because it is a crime that is equivalent to, or worse than, the act of sexually abusing a child. others contend that possession of child pornography must be punished severely because possession creates an increased risk that an individual will sexually abuse children. And still others seem to treat prosecutions for possession of child pornography as a proxy for prosecuting those who sexually abuse children; in other words, because those who possess child pornography are assumed also to sexually abuse children, the punishment for child pornography possession ought to be calibrated to punish child sex abuse as opposed to merely possession of child pornography.

This Article questions the new severity in punishing possession of child pornography. It is critical of those who seek to blur the line between the possession of child pornography and child sex abuse, noting that such blurring is inconsistent with fundamental notions of fairness and justice, and it is unsupported by empirical evidence. Furthermore, the Article identifies independent concerns with such blurring. Focusing on child pornography allows us to ignore the messy and tragic reality of child sex abuse--namely, that the majority of these crimes are committed by those who know and care for the child they are abusing rather than by strangers. In addition to the fact that the child pornography discussion allows us to continue to misperceive child sex abuse as a stranger-danger issue, when possession is conflated with actual child sex abuse, the public may be misled into believing that law enforcement is successfully detecting and prosecuting child sex abuse when that is not the case.

The Article proceeds in four parts. Part I maps the modern trend of increasing sentences for those convicted of possessing child pornography. Part II identifies how those increases are tied to rhetoric that blurs the line between possession of child pornography and child sex abuse, and it critically evaluates the reasoning in that rhetoric. Part III discusses how blurring the line between possession and child sex abuse perpetuates misperceptions regarding both the personal relationships involved in child sex abuse and the effectiveness of law enforcement in combating such abuse. Part IV offers some tentative legislative and judicial solutions to reform the sentencing of child pornography offenders.

  1. THE MODERN TREND OF INCREASED SENTENCES

    In contrast with the constitutional protections that ensure the right of individuals to possess images of adult pornography, states are permitted to criminalize the private possession of child pornography. ordinarily, the First Amendment protects sexually explicit speech and images unless they are "obscene," (3) and the private possession of pornographic images, even if obscene, is also protected. (4) But in New York v. Ferber, (5) the Supreme Court held that the distribution and sale of even nonobscene child pornography could be criminalized. And in Osborne v. Ohio, (6) the Court upheld criminal sanctions for the private possession of child pornography. The Court justified these departures from its First Amendment jurisprudence on the grounds that images of child pornography are the product of child sex abuse, that the state has an important interest in protecting the victims of child sex abuse, and that reducing demand for child pornography (by prosecuting possessors) could thus reduce the instances of child sex abuse. (7) Because Ferber and Osborne held that the First Amendment does not protect possession of child pornography, states are free to criminalize it. And because the Supreme Court has essentially abdicated judicial review of length of sentence claims under the Eighth Amendment, (8) states can increase the penalties for possessing child pornography up to life in prison without running afoul of the Constitution.

    Since Osborne was decided in 1990, legislatures have significantly increased the sentences for possession of child pornography. For example, in 1990, federal law punished the possession of child pornography by up to ten years of imprisonment. (9) In 1996, the maximum penalty was increased to fifteen years of imprisonment. (10) A mandatory minimum five-year sentence was added, and the statutory maximum sentence was raised from fifteen to twenty years in 2003. (11)

    States have also significantly increased their penalties. All fifty states have specific provisions criminalizing the possession of child pornography, and thirty states have increased the penalties available for possession of child pornography since criminalizing it. (12) The pattern of increasing penalties appears to be getting stronger, as twenty-eight of those increases have occurred since 2000,13 nineteen have occurred since 2005, (14) and four states have increased the penalties associated with possession of child pornography multiple times in the last twenty years. (15)

    Some of the sentencing increases have been particularly dramatic. For example, in 2003, Georgia reclassified possession of child pornography from a misdemeanor to a felony, which increased the sentence from no more than twelve months in prison to a minimum of five and a maximum of twenty years in prison. (16) Montana increased the maximum penalty for possessing child pornography from six months to ten years' imprisonment in 1995. (17) And in 2005, Nevada increased the maximum penalty for subsequent offenses of child pornography possession from ten years to life imprisonment. (18)

    Current sentencing practices for possessors of child pornography appear quite severe when viewed in isolation. And they begin to look completely disproportionate when viewed in relation to sentences for sexual abuse of children. That is because the modern practices have resulted in some defendants who possess child pornography receiving longer sentences than defendants who sexually abuse children. (19) one recent study of federal sentencing practices documents that a typical possessor of child pornography will receive a significantly longer sentence under the Federal Sentencing Guidelines than a defendant who engages in repeated sex with a twelve-year-old girl. (20) It is also a significantly longer sentence than the one imposed in a reported case from the Eighth Circuit where an offender paid to have a mother hold down her nine-year-old child while he raped the young girl twice a week for two years. (21)

    The longer sentences for possession of child pornography than for instances of child sex abuse appear to be attributable not to conscious legislative design, (22) but rather to the piling on of various sentencing enhancements. For example, several states increase sentences based on the number of images a child pornography offender possesses. Alaska, Arizona, Florida, Tennessee, and Utah treat each image possessed as a separate criminal offense, (23) and Connecticut differentiates between various degrees of possession based on the number of images an offender possesses. (24) The federal sentencing scheme also provides for sentencing increases based on the number of images possessed. (25) Treating each image as a separate offense can result in extremely long sentences, especially because the Internet allows individuals to amass a significant number of images with little effort. (26) In one instance, an Arizona defendant was sentenced to two hundred years' imprisonment for the possession of child pornography--a sentence that was the result of a statutory mandatory minimum sentence of ten years (27) in connection with a statutory mandate that requires the imposition of a consecutive sentence for each image possessed. (28) (The defendant was charged with possessing twenty images.) (29) That sentence is not only remarkably long in absolute terms, but it is also longer than the sentences imposed on several defendants who sexually abused children. The same Arizona state sentencing regime that sent a defendant to jail for two hundred years for possession of child pornography also imposed a fifteen-year sentence on another defendant who twice molested a six-year-old girl; imposed a twenty-two-month sentence on a priest who molested an altar boy; and imposed a one-year sentence on a man who kidnapped and sexually assaulted a fourteen-year-old girl who was...

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