Lock Them Up Longer, Sell Their Stuff: How To Curb Child Pornography
In Attleboro, Mass. last month, a 51-year-old manager of a sober house admitted to having hundreds of CDs and DVDs containing child pornagraphy — amassing to possibly the single-largest seizure of of the illicit material in the city’s police history. The man, Michael Paterson, was found to have images of nude boys as young as six-year-old on his computer. “That’s what floats my boat,” Paterson allegedly replied to why he had such material, as stated by Assistant District Attorney Noah Ertel.
In South New Jersey, 14 men are currently being charged with distributing child porn — including child rape videos — via peer-to-peer file sharing. This will make the third child porn case New Jersey is currently pursuing. Last week, the Bernards Township Police charged John Schulenburg, 59, with possession of pornographic images of naked children and children engaged in sexual acts. Schulenburg was arraigned after police received a suspicious behavior report concerning him taking pictures of children at a school bus stop.
These cases, as well as the litany of case developments that have occurred in the last couple of weeks — including the guilty plea to three counts of possessing child pornography by a Northland, Mo. Catholic priest; the denial to suppress evidence of child pornography in the child sexual abuse case of John Burbine of Wakefield, Mass.; the guilty plea of a Jersey City, N.J. private school teacher, who had more than 100,000 pornographic images and videos of young boys; and the arrest of a Woodstock, Ill. man on seven charges of alleged possession of child pornography — represent a troubling trend in the United States and worldwide. It also represents a need to modify how society recognizes and deals with this issue.
“[So-called] First Amendment absolutists take advantage of [...] desensitization to trivialize possession of child pornography,” wrote author and child advocate Andrew Vachss on his blog The Zero. “They claim that ‘mere possessors’ are not dangerous to children. They agitate for nothing more than short-term jail sentences and probation for ‘simple possession,’ convincing judges to ignore sentencing laws that require longer prison terms.“
“But they cannot erase the truth: these images have a market because ‘possessors’ want to possess them. Crime chases dollars. Although child pornography networks grab headlines, without individual customers, the networks are out of business.”
A solution from.. The War On Drugs?
Vachss argues that the way to fight this crime is by making it more expensive to commit. “Civil forfeiture gained prominence during the so-called ‘war on drugs,’ and gained strength with the evolution of RICO statutes,” Vachss said in an interview with the National Association to Protect Children, which he serves as a board member. “Now civil forfeiture is possible for a whole variety of crimes (including child pornography, under Title 18 United States Code 2254) but the laws involving forfeiture for drug trafficking or money laundering tend to be much stronger than those for other crimes. For example, there are expansive multi-national civil forfeiture laws when narco-trafficking is involved.”
“I specifically want the federal government to be able to sue, because it has both the resources and the mandate. I am not advocating ‘class action’ suits on behalf of unidentified victims. The goal is not enrichment of individual lawyers. The goal is to benefit child pornography victims, penalize the profiteers, and add assets to the agencies charged with enforcing the law.”
Currently, 22 states have asset forfeiture laws for child pornography cases. Such seizures — which would allow the government to seize any assets used in the production, distribution or marketing of the illicit material or which were purchased with proceedings from the sale of the material — are rarely utilized and even more rarely publicized. As most arrested child pornographers and child porn “collectors” utilized P2P technology and chat rooms to distribute the material, there is little to seize — besides cell phones, cameras and computers — in the first place.
But, as larger and more organized groups seek to participate in the child porn industry, the potential for large seizures increases, and while Vachss does not think a few seizures will stop child pornography, it will give law enforcement the additional funding and resources needed to expand monitoring and to step up law enforcement’s response to this crime.
20 times more cases since 1995
A proper response is definitely in need. Between 1996 and 2005, the FBI’s number of “innocent images,” or child pornography and exploitation cases ballooned by 2,026 percent. The number of arrests went up by 2,325 percent, while the number of convictions rocketed 1,312 percent. Between 2001 and 2011, the FBI made approximately 11,000 arrests on child exploitation or pornography.
In the United States, the documenting or recording of sexual acts of minors under the age of 18 is a felony under Title 18 of the United States Code, Chapter 110. Specifically, violators of this act are not only liable for the prison time this crime demands under the current sentencing guidelines, but are also fully responsible for the “full amount of the victim’s losses, including all costs related to physical, psychiatric or psychological medical care, physical and occupational therapy, “necessary transportation, temporary housing, and child-care expenses,” lost income, attorneys’ fees and any other losses suffered by the victim as a direct result of the offense.
The United States has traditionally seen child pornography as three separate but inseparable offenses. First, child pornography represents a sexual act imposed upon a minor. If the minor happens to be under the age of consent — which is likely, in these cases — then the staging and recording of the act represents both statutory rape and intent to aid and abet statutory rape. Second, purchasing and trading in child pornography encourages the proliferation of the act, which is also intent to aid and abet statutory rape. Finally, interstate transfer of such material — which, unlike adult pornography, still meets the court’s definition of “obscene” — is banned and criminalized under Title 18 of the U.S.C., Chapter 71, Section 1462.
“Any violation of federal child pornography law is a serious crime, and convicted offenders face severe statutory penalties.,” states the United States Department of Justice in its child pornography advisory. “For example, a first time offender convicted of producing child pornography under 18 U.S.C. § 2251, face fines and a statutory minimum of 15 years to 30 years maximum in prison. A first time offender convicted of transporting child pornography in interstate or foreign commerce under 18 U.S.C. § 2252, faces fines and a statutory minimum of 5 years to 20 years maximum in prison. Convicted offenders may face harsher penalties if the offender has prior convictions or if the child pornography offense occurred in aggravated situations defined as (i) the images are violent, sadistic, or masochistic in nature, (ii) the minor was sexually abused, or (iii) the offender has prior convictions for child sexual exploitation. In these circumstances, a convicted offender may face up to life imprisonment.”
Nearly half of sentences are below recommendations
Despite this remarkably high prosecutorial and sentencing standard, in reality, many child pornographers are not subject to such harsh judgement. This is, in a large part, due to judicial prerogative. “Child pornography offenses are serious crimes,” state Emily Bakeman and Sarah Riley Howard in their report, “A Policy of Variance: Downward Departures from Child Pornography Sentencing Guidelines.” “Accordingly, the Federal Sentencing Guidelines for these offenses impose severe punishments – but maybe too Draconian, according to many judges. A 2010 survey by the United States Sentencing Commission revealed that 70% of district judges believe that the child pornography Guideline range for possession is too high, 69% believe the range is too high for receipt, and 30% believe it is too high for distribution.”
“Courts’ disagreement with the current guidelines is more than just talk. In 2011, child pornography offenses had the highest rate of below-guideline sentences, with 44.9% of sentences for child pornography trafficking and possession below the guideline range, as compared to 17.4% of sentences for all offenses. While judges are permitted to deviate from any guideline if they have compelling reasons for doing so, basic policy disagreements are consistently invoked to deviate from the guidelines for child pornography sentences.”
This, in part, is creating a situation that — for child pornographers — the potential profit in producing illicit materials exceed any risk. As most arrests focus on consumers and not the producers, the market — which represents an ever-growing part of the world’s $97.06 billion (as of 2006) pornography industry — has little motivation to slow its growth. In 2008, the Internet Watch Foundation reported that there was 1,536 discovered individual child abuse domains. Today, it is difficult to ascertain exactly how many child abuse domains are in existence, as the Tor Network — a redundantly encrypted network in the darknet — has grown increasingly more important in child pornography distribution, but most experts felt the number has expanded greatly.
“The increasing rate of download deviations from the child pornography guidelines has in fact given courts yet another reason to deviate: avoidance of sentencing disparities,” continued the report. “The guidelines are intended to reduce sentencing disparities by providing a national sentencing standard. However, because of the prevalence of below guideline sentences, within-guideline sentences are quickly becoming the exception rather than the rule.”
In the cases Kimbrough v. United States and Spears v. United States, the U.S. Supreme Court ruled that district courts can reject sentencing guidelines in the name of ensuring justice. However, the repeated rejections of the guidelines create a precedent that have proven beneficial to pornographers.
Per the National Center for Missing & Exploited Children, “In a study of arrested child pornography possessors, 40 percent had both sexually victimized children and were in possession of child pornography. Of those arrested between 2000 and 2001, 83 percent had images involving children between the ages 6 and 12; 39 percent had images of children between ages 3 and 5; and 19% had images of infants and toddlers under age 3.”
“The term ‘pornography’ may give rise to discussions about what constitutes art,” Vachss wrote for Parade Magazine in 2006. “It may invoke issues of free speech or censorship. But no matter how you feel about pornography in general, child pornography does not belong in that debate. No child is capable, emotionally or legally, of consenting to being photographed for sexual purposes. Thus, every image of a sexually displayed child—be it a photograph, a tape or a DVD—records both the rape of the child and an act against humanity.”
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