Judges Object to Bad Sex Crime Laws

Strange that y0u should attack Bill because of his thoughts on Hawkeye, but you defend Hawkeye who's thoughts are against all that is decent to the majority of the population.

Should Possession of Child Pornography Require Reparations to the Child?
By SHERRY F. COLB

Wednesday, February 17, 2010

At the age of eight, "Amy" (a pseudonym) suffered sexual assault at the hands of her uncle, a man who was subsequently convicted and sent to prison. Amy's ordeal is not entirely over, however. While molesting her, her uncle videotaped his crimes and distributed the pictures (both moving and still) to consumers of child pornography. As a result, images of Amy's molestation continue to circulate on the Internet, over a decade after the abuse took place, and the images regularly emerge when police arrest and search people who are in possession of child pornography.

Amy has sought restitution (a legal term for compensation) from people who have been found in possession of her images in 350 criminal cases nationwide. Because of the Crime Victims Rights Act, victims receive notification when child pornography containing their images comes to light, and that is how Amy learned about some of the people who have pleasured themselves by watching her being sexually abused.

In seeking restitution from those caught in possession of these materials, Amy claims that the defendants owe her money because they have contributed to her suffering through their possession of the videos. Some courts have been very receptive to her arguments and have awarded generous restitution, while others have refused to award anything at all.

In this column, I will evaluate Amy's claims against those who have been criminally charged with possession of child pornography in which she appears.

Why Some Courts Resist Amy's Claims

Before seeking to understand why Amy might be entitled to restitution, it is useful to consider some of the arguments that opponents mobilize against a monetary award.

First, they say, the possession of child pornography does not itself inflict any harm on Amy. Rather, they contend, the harm began and ended with the sexual assault committed by Amy's uncle, and he is therefore, properly, subject to criminal punishment and whatever restitution she is able to exact from him. In other words, this argument goes, we have a perpetrator here, and that perpetrator is Amy's uncle, not the people who downloaded images of his crime.

Second, some argue in the same vein that those in possession of child pornography have no relationship to Amy or to any of the other victims who appear in child pornography. Those who endorse this argument suggest that one cannot owe money to someone with whom one has no relationship at all. An individual's possession of the images of Amy, on this approach, does not alter Amy's life for the worse at all.

Third, some have claimed that even if one believes restitution is, in theory, appropriate, it is impossible to calculate how much to award. As a result, they say, there will be wildly varying assessments of the proper amount of restitution by different judges " as, in fact, there have been up until this point. Two Florida judges, for example, each ordered convicts to pay her over three million dollars, while a California judge ordered a payment of only $5000, and a Texas judge refused to award anything. Awards will depend entirely on the subjective reaction of the criminal court judge, rather than on any predictable or uniform method for determining compensation. Given this inherent arbitrariness, some conclude, it does not make sense for the law to be involved in dispensing restitution.

And fourth, there are those who contend that any compensation should occur in the context of a civil lawsuit, rather than in criminal court. Criminal courts, they reason, are best suited to address factual determinations and penalties, and are far less able to determine issues of compensation than civil courts are.


Why We Criminalize Possession of Child Pornography

To respond to these arguments opposing Amy's claims, it is useful first to consider the reasons our society has for criminalizing the possession of child pornography at all. That is, if we are to understand the role of compensation in a criminal prosecution for possession, then we must first examine the "wrong" that we believe takes place when people possess the material at issue.

One reason to punish the possession of such material is that market demand (as evidenced by possession) drives at least some portion of the misconduct itself. If there were no market for watching child pornography, then those who commit acts of sexual molestation for the camera might not do so anymore (or might do so much less frequently than they do). Those who want to view the materials, and who act on that desire by downloading them, thus motivate the conduct that gives rise to the product that they possess. Accordingly, to the extent that criminalizing possession deters some people from demanding child pornography, this deterrence helps to reduce the acts of abuse that feed the supply as well.

A second reason to punish possession of child pornography is the invasion of privacy that watching someone being molested represents. As Amy describes it, the knowledge that people are watching her being sexually assaulted feels like an additional assault to her.

To appreciate the way in which possession indeed invades a victim's privacy, consider the pedophile who uses binoculars to peer into a child's bedroom across the street, through a break in the blinds, so that he can masturbate as he watches the child undress every night. In this situation, no one is physically molesting the child, and there is therefore no more salient perpetrator to distract us " in the way that there is in the case of Amy's uncle. Rather, the only culprit in this scenario is the pedophile who watches the child undress. The same is true when a Peeping Tom targets an adult male or female to watch with binoculars in this way.

The person in possession of child pornography does not watch Amy in real time, of course, as the Peeping Tom would, but the harm is of the same kind. Someone who has no legitimate business or permission to be looking at her body is doing so. That he is watching her being violated, rather than just observing her living her life, does not mitigate the invasion. To be raped or sexually abused is both a violent and a degrading crime, and no victim wants a prurient audience to witness such an act.

How Defenders of Restitution Might Respond to Its Detractors

Carrying over these ideas to the restitution area, we can identify how defenders of restitution might respond to its detractors.

First, proponents of restitution could point out that the consumer of child pornography is not innocent of the molestation that takes place to produce the product. As discussed above, the consumer motivates the producer to produce, and the production of child pornography generally involves the sexual violation of children. It was the large numbers of people already interested in possession of child pornography that assured Amy's uncle that he could make a profit by producing more. And consumers are surely aware that their consumption drives the creation of more images.

By analogy, as I have discussed elsewhere, people who consume animal products are participants in the suffering and death of the animals who are tortured and killed to make the products. By eating eggs, the consumer motivates the producer to breed more egg-layers and to kill the male chicks born of the egg-layers (and to kill the egg-layers themselves, once they are "spent"), all of which is part of how a supplier can meet demand. By eating dairy cheese, the consumer motivates the farmer to impregnate the cow (or sheep or goat) and then take her baby away from her and kill him for veal or another "delicacy." And the same is true for consumers of fish, chickens, turkeys, and other sentient creatures. By reducing and ultimately eliminating the demand for animal products " that is, by being vegan " we can eliminate the producers' incentive to commit this violence against animals in the first place.

In the case of child pornography, there is a second reason to require the consumer to pay restitution to the particular victim who appears in the film that he possesses (as opposed to paying some other victim of the same sort of offense). The consumer of child pornography has a direct relationship with the victim of molestation depicted in the film: He is her Peeping Tom. Quite apart from the causal connection between consumption and production (or, in economic terms, "demand" and "supply"), then, the relationship is specific to the child or children being watched: By watching Amy getting sexual abused, the viewer invades Amy's privacy (in addition to motivating other child pornographers to victimize and film her and other child victims). In that sense, it is appropriate to ask the possessor of child pornography to compensate Amy (and any other victims who might appear in his films), because he violated her particular privacy by watching her being molested.

How Much Restitution Should Victims Like Amy Receive?

Some of the above objections to restitution have more to do with practicality than they do with justice. Closely examined, such arguments are unpersuasive. They say, for instance, that it is difficult to calculate precisely how much money Amy should receive, and therefore, that we should simply get out of the business of awarding monetary restitution.

To the extent that we agree, however, that Amy and those like her are owed something rather than nothing, we replace uncertainty and some arbitrariness with certain injustice when we eliminate the option of recovering restitution altogether. In other areas of law, we have rightly settled for estimation when perfect calculation seems impossible, as discretionary awards for pain and suffering attest.

Another argument of those who oppose restitution for victims like Amy is in tension with the "impossible to estimate" point. This argument holds that Amy should bring a civil suit, rather than ask for restitution in criminal court. However, if it is indeed impossible to calculate the "right" number to assign to the harm committed by a possessor of child pornography, then in what sense could we expect a civil jury to do a "better" job of accomplishing the calculation than a criminal court judge would?

Restitution Is a Win-Win Proposition

From the perspective of the victim of child pornography " the child and the adult that she later becomes, if she survives the assault " her assailant and every viewer have robbed her of something profound. They have all participated in her suffering and degradation, and they continue to do so as long as the material circulates. Because the Internet works as it does, this can mean the rest of a victim's life.

Though money cannot completely restore any victim to what she would have been in the absence of trauma, its award " whether through civil damages or restitution " represents a recognition of what has been unjustly taken from her. And that acknowledgement can, in and of itself, be a source of validation and comfort for a victim. The amounts will necessarily be indeterminate (as we have seen in the great disparities between awards granted in criminal courtrooms across the nation). Yet that indeterminacy does not negate the substantial benefits to victims of requiring perpetrators to pay them reparations.

In one sense, reparations also help to remind the perpetrator " in this case, the violator of a child's intimate privacy " that what he did harmed an individual " that his conduct was not simply a private, "victimless" transaction. In another sense, the availability of reparations expresses society's interest " as captured by the criminal court's involvement " in both protecting victims and redistributing wealth from those who have stolen what was never theirs to take, to those who represent the very real, individual victims of that theft.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School.

http://writ.news.findlaw.com/colb/20100217.html

Ninety-four of 187 Interpol member states had laws specifically addressing child pornography as of 2008, though this does not include nations that ban all pornography. Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute. Both distribution and possession are now criminal offenses in almost all Western countries. A wide movement is working to globalize the criminalization of child pornography, including major international organizations such as the United Nations and the European Commission.
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Legal definitions of child pornography generally include sexual images involving both prepubescent and post-pubescent teenage minors and computer-generated images that appear to involve them.Most possessors of child pornography who are arrested are found to possess images of prepubescent children; possessors of pornographic images of post-pubescent minors are less likely to be prosecuted, even though those images also fall within the statutes.
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Terminology
Recently, the term "child abuse images" has been increasingly adopted by both scholars and law enforcement personnel because the term "pornography" can carry the inaccurate implication of consent and create distance from the abusive nature of the material.The similar terms "abuse images" and "child sexual abuse images" are also used. However, the term "child pornography" retains its legal definitions in various jurisdictions, along with related terms such as "indecent photographs of a child" and others .In 2008, the World Congress III against the Sexual Exploitation of Children and Adolescents stated in their formally adopted pact that "Increasingly the term 'child abuse images' is being used to refer to the sexual exploitation of children and adolescents in pornography. This is to reflect the seriousness of the phenomenon and to emphasize that pornographic images of children are in fact records of a crime being committed."

Interpol and policing institutions of various governments, including among others the United States Department of Justice, enforce internationally. Since 1999, the Interpol Standing Working Group on Offenses Against Minors has used the following definition:

Child pornography is the consequence of the exploitation or sexual abuse perpetrated against a child. It can be defined as any means of depicting or promoting sexual abuse of a child, including print and/or audio, centered on sex acts or the genital organs of children.

Child sexual abuse in production and distribution

Children of all ages, including infants, are abused in the production of pornography.The United States Department of Justice estimates that pornographers have recorded the abuse of more than one million children in the United States alone.There is an increasing trend towards younger victims and greater brutality; according to Flint Waters, an investigator with the federal Internet Crimes Against Children Task Force, "These guys are raping infants and toddlers. You can hear the child crying, pleading for help in the video. It is horrendous."According to the World Congress against Commercial Sexual Exploitation of Children, "While impossible to obtain accurate data, a perusal of the child pornography readily available on the international market indicates that a significant number of children are being sexually exploited through this medium."

The United Kingdom Children's charity NCH have stated that demand for child pornography on the internet has led to an increase in sex abuse cases, due to an increase in the number of children abused in the production process.In a study analyzing men arrested for child pornography possession in the United States over a one year period from 2000 to 2001, most had pornographic images of prepubescent children (83%) and images graphically depicting sexual penetration (80%). Approximately 1 in 5 (21%) had images depicting violence such as bondage, rape, or torture and most of those involved images of children who were gagged, bound, blindfolded, or otherwise enduring sadistic sex. More than 1 in 3 (39%) had child-pornography videos with motion and sound. 79% also had what might be termed softcore images of nude or semi-nude children, but only 1% possessed such images alone. Law enforcement found about half (48%) had more than 100 graphic still images, and 14% had 1,000 or more graphic images. Forty percent (40%) were "dual offenders," who sexually victimized children and possessed child pornography.

A recent study in Ireland, undertaken by the Garda Síochána, revealed the most serious content in a sample of over 100 cases involving indecent images of children. In 44% of cases, the most serious images depicted nudity or erotic posing, in 7% they depicted sexual activity between children, in 7% they depicted non-penetrative sexual activity between adults and children, in 37% they depicted penetrative sexual activity between adults and children, and in 5% they depicted sadism or bestiality.

Masha Allen, who was adopted at age 8 from the former Soviet Union by an American man who sexually abused her for five years and posted the pictures on the Internet testified before the United States Congress about the anguish she has suffered at the continuing circulation of the pictures of her abuse, to "put a face" on a "sad, abstract, and faceless statistic," and to help pass a law named for her. "Masha's Law," included in the Adam Walsh Child Protection and Safety Act passed in 2006, includes a provision which allows young people 18 and over to sue in civil court those who download pornographic images taken of them when they were children. "Downloading" includes viewing without actual download, many successful prosecutions are completed through using residual images left on the viewers computer.
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Internet proliferation

Philip Jenkins notes that there is "overwhelming evidence that [child pornography] is all but impossible to obtain through nonelectronic means." The Internet has radically changed how child pornography is reproduced and disseminated, and, according to the United States Department of Justice, resulted in a massive increase in the "availability, accessibility, and volume of child pornography."The production of child pornography has become very profitable and is no longer limited to pedophiles.

Digital cameras and Internet distribution facilitated by the use of credit cards and the ease of transferring images across national borders has made it easier than ever before for users of child pornography to obtain the photographs and videos. The NCMEC estimated in 2003 that 20% of all pornography traded over the Internet was child pornography, and that since 1997 the number of child pornography images available on the Internet had increased by 1500%.

In 2007, the British-based Internet Watch Foundation reported that child pornography on the Internet is becoming more brutal and graphic, and the number of images depicting violent abuse has risen fourfold since 2003. The CEO stated "The worrying issue is the severity and the gravity of the images is increasing. We're talking about prepubescent children being raped." About 80 percent of the children in the abusive images are female, and 91 percent appear to be children under the age of 12. Prosecution is difficult because multiple international servers are used, sometimes to transmit the images in fragments to evade the law. Some child pornographers also circumvent detection by using viruses to illegally gain control of computers on which they remotely store child pornography. In one case, a Massachusetts man was charged with possession of child pornography when hackers used his computer to access pornographic sites and store pornographic pictures without his knowledge. The U.S. Court of Appeals for the Tenth Circuit has ruled that if a user downloads child pornography from a file sharing network and possesses it in his "shared folder" without configuring the software to not share that content, he can be charged with distributing child pornography.

Regarding internet proliferation, the U.S. Department of Justice states that "At any one time there are estimated to be more than one million pornographic images of children on the Internet, with 200 new images posted daily." They also note that a single offender arrested in the U.K. possessed 450,000 child pornography images, and that a single child pornography site received a million hits in a month. Further, that much of the trade in child pornography takes place at hidden levels of the Internet, and that it has been estimated that there are between 50,000 and 100,000 pedophiles involved in organized pornography rings around the world, and that one third of these operate from the United States.

Collection by pedophiles

Viewers of child pornography who are pedophiles are particularly obsessive about collecting, organizing, categorizing, and labeling their child pornography collection according to age, gender, sex act and fantasy. According to FBI agent Ken Lanning, "collecting" pornography does not mean that they merely view pornography, but that they save it, and "it comes to define, fuel, and validate their most cherished sexual fantasies." An extensive collection indicates a strong sexual preference for children, and if a collector of child pornography is also a pedophile, the owned collection is the single best indicator of what he or she wants to do. The National Society for the Prevention of Cruelty to Children describes researchers Taylor and Quayle's analysis of pedophile pornography collecting:

"The obsessive nature of the collecting and the narrative or thematic links for collections, led to the building of social communities on the internet dedicated to extending these collections. Through these 'virtual communities' collectors are able to downgrade the content and abusive nature of the collections, see the children involved as objects rather than people, and their own behaviour as normal: It is an expression of 'love' for children rather than abuse."

These offenders are likely to employ elaborate security measures to avoid detection. The US DOJ notes that "there is a core of veteran offenders, some of whom have been active in pedophile newsgroups for more than 20 years, who possess high levels of technological expertise," also noting that pedophile bulletin boards often contain technical advice from child pornography users' old hands to newcomers."

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Child pornography is viewed and collected by pedophiles for a variety of purposes, ranging from private sexual uses, trading with other pedophiles, preparing children for sexual abuse as part of the process known as "child grooming", or enticement leading to entrapment for sexual exploitation such as production of new child pornography or child prostitution.
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Child sex tourism

One source of child pornography distributed worldwide is that created by sex tourists. Most of the victims of child sex tourism reside in the developing countries of the world. In 1996, a court in Thailand convicted a German national of child molestation and production of pornography for commercial purposes; he was involved in a child pornography ring which exploited Thai children. A sizable portion of the pornography seized in Sweden and in the Netherlands in the 1990s was produced by sex tourists visiting South-east Asia. INTERPOL works with its 188 member countries to combat the problem, and launched its first-ever successful global appeal for assistance in 2007 to identify a Canadian man, Christopher Paul Neil, featured in a series of around 200 photographs in which he was shown sexually abusing young Vietnamese and Cambodian children.

Organized crime

Organized crime is involved in the production and distribution of child pornography, which is found as a common element of organized crime profiles.When criminals organize to produce and distribute child pornography, they are often called "sex rings". In 2003, an international police investigation uncovered an immense Germany-based child pornography ring involving 26,500 suspects who swapped illegal images on the Internet in 166 different countries. In a 2006 case, US and international authorities charged 27 people in nine states and three countries in connection with a child pornography ring that US federal authorities described as "one of the worst" they have discovered. The assistant secretary for Immigration and Customs Enforcement added that the case reflected three larger trends that are becoming more common in child pornography rings. One is the increasing prevalence of "home-grown" pornographic images that are produced by predators themselves, and include live streaming video images of children being abused, not just the circulation of repeated images. Another trend is the growing use of sophisticated security measures and of peer-to-peer networking, in which participants can share files with one another on their computers rather than downloading them from a web site. The group used encryption and data destruction software to protect the files and screening measures to ensure only authorized participants could enter the chat room. A third trend is the increasingly violent and graphic nature of the images involving the abuse of younger children.

According to Jim Gamble, CEO of the Child Exploitation and Online Protection Centre, around 50 per cent of sites showing children being abused are operated on a pay-per-view basis. "The people involved in these sites often aren't doing it because they're deviant by nature. They're doing it because they're business people. It's risk versus profits. We need to reduce the profit motivation." The CEOPP was established in 2006, and targets the finances of organised criminal gangs selling images of child abuse.

http://en.wikipedia.org/wiki/Child_pornography#cite_note-61

FF: Most people would not only disagree with you, they would question your sense of morality.

The exact same argument could be made to ban all depiction of BDSM as well......"abusers use BDSM porn to desensitize their female victims, the existence of this stuff harms women so we must make sure this stuff does not exist, punish all those who are found in possession"

I know that it is fashionable at the moment, but I don't think that using the law to coerce morality ever works, and I don't have much respect for those who try it.

What's fashionable about it? What nonsense. It never works perfectly. If it did we could do away with the justice system and prisons. This is just that perpetual whine that you hear from some idiots about how their liberties are being taken from them.

I wonder how, these same feminists, with all this power they possess, have been unable to get their salaries up to those of men.

Believe it or not people still tend to have this crazy idea that it is THEY who get to decide when their liberty has been infringed upon.

Quote:

I wonder how, these same feminists, with all this power they possess, have been unable to get their salaries up to those of men.

Female claims of being repressed at this point are pure bullshit. If anyone has the right to claim the victim status it is men, but we are usually too proud to do that.

The feminist power grab has not been by women only, far too many idiot men have this internalized guilt over long ago abuses of women that they cant get over. It clouds their vision, and they conspire in the effort to rub out the individual.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.

The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.

As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.

As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

Well DUH, you write idiotic and unjust law and the system will suffer for it....not that I have much faith that sanity will prevail.

I am wondering if all those years involved in the sexual abuse circles has hardened Hawkeye to the reality of what goes on in the world around him. It seems to go beyond cynicism

It would be even better if we moved most of this stuff out of the criminal justice system,

That is because you don't understand

You have a problem recognizing sex crimes and sex-related crimes, as being very real crimes.