Newspapers Quietly Resist Child Sex Panic

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23 Responses

  1. Quietstorm says:

    I personally feel that child pornography is inexcusable.. It is still a child who has probably been forced to participate in something he or she didn’t want to do which constitutes abuse in my book. There is a ton of child porn circulating the Internet and I’m glad that there are watchdogs like Cybertipline in place to report this type of lewd behavior.

  2. Orin Kerr says:

    Dan,

    I’d be interested in knowing what you think should happen to this area of law, given that your approach is “rational” instead of “panic mongering.” Would you change the definition of child pornography? Change the sentencing scheme? I’d also be interested in your response to the Butner study on the link between possession of child pornography and actual acts of child molestation. (It’s not published, but I think I have a copy of the study somewhere — it’s also discussed in a recent article by Joseph Fulda.)

  3. Dan Filler says:

    A central challenge in child pornography debates is the definition of child pornography. Is a photo of a dressed child, in a flirtatious pose, with a “focus” – whatever that might mean – on the genital area, porn? There are cases that suggest it is. If so, the movie Little Miss Sunshine might be porn. Is a photo of a nude 16 year old, next to an article where that kid talks about teen sexuality, porn? Given the context, it might be – under current law.

    Quietstorm and Orin raise very different issues. Quiet is thinking about consent. A child photographed nude, without consent, is very different than a child who is old enough to consent to many other things (as is the case of a 16 year old) and who consents to a nude photo.

    Orin, I’d say that I’m concerned about both sentencing (inclusive of things like community notification, which is in my view ought to be viewed as a type of punishment) and the definitions of pornography.

    Orin, you also mention secondary effects. If we believe this study (which I haven’t read), is the possession of child pornography a cause, or a harbinger, or child molestation? I haven’t seen data showing that the existence of nude photos of kids – or novels like Lolita – causes molestation. I’d be interested in reviewing such a study. If we ban child nudes on the basis of secondary effects, there is little basis for excluding art – like Sally Mann -from porn laws. It’s not about consent (or free speech); it’s about preventing crime.

  4. Deven Desai says:

    As far as the registering sex offender issue goes, some may want to read the article at http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060829/NEWS24/608290360/-1/NEWS.

    Apparently Ohio’s legislature has passed a law “that would allow sex offenders to be publicly identified and tracked even if they’ve never been charged with a crime.” The process is being called a civil registry (as opposed to criminal). According the the article the origins of the idea came from the Catholic Church as “an alternative to opening a one-time window for the filing of civil lawsuits alleging child sexual abuse that occurred as long as 35 years ago.”

    The law “allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.” It operates similar to Megan’s laws that put name, pictures, and location information into the public as notifiaction of the person’s identity and whereabouts and would also limit places where the person could live.

    If the article is accurate, it seems odd that a system created so one group could avoid a large lawsuit would become a way to tag people without a successful lawsuit. But I am not a criminal lawyer so anyone who knows what is going on here or how this system makes sense, please chime in.

  5. RCinProv says:

    Where I come from, statements like “we over-prosecute x” or “we over-punish y” require empirical evidence. You seem to think that a single example equals a trend. I know of no empirical evidence that we “over-prosecute” or “over-punish” in these areas. I’d really like to know what evidence you have.

    When I did the largest sentencing study ever done on child molestation charges — and I did it right when the prss claimed we were at the height of our “hysteria” about child sexual abuse in 1993 — it turned out that 1/3 of those guilty of first-degree child molestation did no time at all! (It was 2/3s for second degree.) There was no empirical evidence of the “trends” that every would-be social critic claimed were sweeping the country.

  6. Lily says:

    I read today that “awhile ago,” a judge ruled that Girls Gone Wild wasn’t child pornography. . . though today CNN reported that Joe Francis and the related companies are getting fined for not having consent forms on record.

  7. Orin Kerr says:

    Dan writes:

    If we ban child nudes on the basis of secondary effects, there is little basis for excluding art – like Sally Mann -from porn laws. It’s not about consent (or free speech); it’s about preventing crime.

    I’m not sure I follow. The argument is that if possession of child pornography is a reliable proxy for actual molestation, then that justifies making a priority out of prosecuting image possession offenses. It’s largely an incapacitation argument, as I understand it. I’m curious what your take is on that argument.

  8. Dan Filler says:

    Lily, under federal law, producers of images that contain “sexually explicit conduct” are required to keep records proving that the actors/models are at least 18 years old. I’m not sure what the other case was, but I suspect that AG Gonzalez takes a very broad view of what constitutes “sexually explicit conduct.” One great way to shut down distribution of othwerise legal material is to nail the distributors for records violations.

    Orin, lets start with the assumption that we’re most interested in child molestation issues. That is, lets assume arguendo that the 16 year olds in Bravo Magazine should be allowed to consent, and that this material should not be banned simply because some people think it’s immoral. I think these assumptions could be challenged, but lets use them. The question, then, is whether the existence of this material produces molestation, or whether it is simply something that one commonly finds in possession of molesters. If possession of German Bravo results in a non-molester becoming a molester, there is a much stronger case for prohibiting both distribution and possession of the material.

    If all we know is that lots of molesters seem to collect Bravo, that doesn’t tell us the frequency with which pictures of nude kids are associated with molestation. It may be the case that 2 million people possess the magazine, but only 15 molest. If we catch 15 molesters, and 10 of them have Bravo, do we ban it? You could argue that 2/3′s of all molesters possess it; but 99.9% of all possessors don’t molest. If we arrest everyone who possesses Bravo, and our primary goal is suppressing molestation, we’re WAY over-incapacitating. Indeed, we know we’re almost certainly incapacitating unnecessarily when we arrest distributors since, as far as we know, there is no basis to believe that Borders or Barnes and Noble employees are more likely to molest when they sell Bravo.

    In my view, the strongest arguments against child porn relate to consent. The consent argument is going to eliminate most material that people consider “child porn” – i.e., explicit sexualized images of young children. It may mean, though, that Sally Mann can take arty pictures of her family, and Bravo can photograph 16 year olds. Arguments grounded in reduction of molestation need empirical support for the claim that images of children produce molestation in substantial numbers of cases OR for the claim that a large percentage of people who possess child porn ultimately molest kids. And we’d need to have a very clear idea of what “child porn” is, rather relying on a term that encompasses everything from pictures of 17 year olds in underwear to images of naked 3 year olds in sexual poses.

  9. Orin Kerr says:

    Dan,

    I’m not aware of anyone being prosecuted for anything relating to the magazine, which isn’t even made in the United States; further, the issue I’m raising is prosecution priority, not the scope of illegality. Given that, it doesn’t seem helpful to use that magazine as an example.

    In any event, I’ll look for the empirical study that was done in this area and sent it to you by e-mail. Its results are quite chilling, I think, although it is only one study and the sample size was small.

  10. RCinProv says:

    So, do I take your non-response to mean that you have no actual empirical evidence to support your asertions about “over-prosecution” and “over-punishment”?

    I know this field well and I don’t know of any systematic studies of prosecutions or sentences that support your assertions. Do you?

  11. Dan Filler says:

    RC, in my view overpunishment is clear with respect to use of community notification. As my research has shown, Megan’s Laws (which I believe are punishment, based on their effects on individuals) apply to a broad range of offenses that are not the sorts that most people would imagine to be sexual predator offenses (such as consensual statutory rape between two kids within three or four years of each other). And this all assumes that Megan’s Law has net positive deterrence or preventive effects; I’m not sure there is any data on that. With respect ot over-prosecution, I have less precise knowledge. Orin suggests in his post that much that might be considered child porn may be ignored, as part of prosecutorial discretion. He may be right, though we do know that artists like Sally Mann and Jock Sturges have either faced, or been at risk of facing, prosecution for their art. I have heard a number of anecdotes of seemingly inappropriate prosecutions, but I can’t say that I’ve seen systematic data on the issue.

    As for your own study, I don’t know enough about the cases to know whether they reflect over- or under- punishment. I don’t know whether the volume of cases in 1993 was higher or lower than in other periods, or whether the DA’s were charging more severely due to popular pressure. And I don’t know what punishment was appropriate in these cases. What were the prior records? Were these pleas? I’d love to look at the study; feel free to post the citation.

  12. David S. Cohen says:

    Now, it appears, some of these provisions are being challenged in the popular press. Not on the op-ed page, of course.

    Actually, the Philly Inquirer has been having this debate on its op-ed pages recently, albeit about child sexuality generally, not child porn specifically.

    The paper has a relatively new columnist in its Monday health section who writes exclusively about sex-related issues – for all animals. Apparently, many readers have complained, some in letters to the editor that have been published, saying that their children don’t need to read about the mating patterns and issues of praying mantises, let alone humans.

    In the Sunday op-ed section a few weeks ago (too long ago to still be in their free database), the sex columnist wrote an extensive article (for the Inquirer, at least) about why it’s important for children to have information about human sexuality. She supported it with a lot of scientific research into childhood sexuality. It wasn’t the best piece I’ve ever read, but it was certainly an instance of the op-ed pages tackling the issue of what’s appropriate in the area of childhood sexuality.

  13. L. Plummer says:

    Arguments grounded in reduction of molestation need empirical support for the claim that images of children produce molestation in substantial numbers of cases OR for the claim that a large percentage of people who possess child porn ultimately molest kids.

    Your position is false. Creation of child pornography constitutes child sexual abuse, inasmuch the images themselves constitute photographic proof of the acts of abuse. The impact on child victims of producing child pornography occurs long before any consideration of secondary effects.

    Further, child pornography cannot be accurately described as an over-prosecuted offense. The recent case of John Mark Carr, offers some relevant details. Carr had managed to flee to Thailand after being indicted on multiple child pornography charges in California in 2001. Although his whereabouts were known, Carr could not be extradited from Thailand, and was not rearrested on those charges until he was expelled from Thailand and returned to the US. Why? Because possession of child pornographyin California is a misdemeanor, and as such is not covered by our treaty with Thailand.

  14. L. Plummer says:

    Arguments grounded in reduction of molestation need empirical support for the claim that images of children produce molestation in substantial numbers of cases OR for the claim that a large percentage of people who possess child porn ultimately molest kids.

    Your position is false. Creation of child pornography results in child sexual abuse, inasmuch the images themselves constitute photographic proof of the acts of abuse. The impact on child victims of producing child pornography occurs long before any consideration of secondary effects.

    Further, child pornography is the very opposite of an over-prosecuted offense. As an example, the recent case of John Mark Carr, offers some revealing details. Carr had managed to flee to Thailand after being indicted on multiple child pornography charges in California in 2001. Although his whereabouts were known, Carr could not be extradited from Thailand, and was not rearrested on those charges until he was expelled from Thailand and returned to the US. Why? Because possession of child pornography in California is a misdemeanor, and as such is not covered by our treaty with Thailand. And California’s penal code is hardly an outlier with respect to its sentencing for this particular crime.

  15. RCinProv says:

    Hmmm. So you are counting Megan’s Law as punishment, huh? That seems odd, since the alternative to Megan’s Law is longer sentences. I work with sex offenders once a week, and while they don’t like Megan’s law, they would much rather have it than longer sentences. They see Megan’s law as a break – it gets them out earlier. Also, if we are going be that inclusive for defining punishment, how (if at all) do you count the punishment suffered an innocent child who is sexually abused by one of the vast number of sex offenders who, regardless of their serious crime, do no time at all.

    My sentencing study did not pick and choose. It was comprehensive. I did it in response to Richard Gardner’s outrageous claim that our society had become so “hysterical” about sexual abuse that child molesters were, on average, receiving longer sentences than murders. When I wrote the good doctor and asked for his sources, he told me the story of as ingle case with a long sentence. My study proved he was wrong by a factor of between 200 and 800.

    Now, why was his claim published? Why did nobody reject it out of hand as obviously absurd? Because our society is actually incredibly lenient on child sexual abuse, while we use a few stories to constantly make the opposite claim.

    As for statutory rape: do you have systematic data? Frankly, I doubt it. I couldn’t find any before I studied all the cases in my state over a five year period. Most cases involve enormous age difference, and most of those guys did no time. The cases with minimal differences were almost never consensual. Many were, or should have been, charged as rape – and they were disposed on statutory.

    What I find most tiresome in this “debate” is the claim that it somehow takes courage to argue that our society has overreacted. People like Judith Levine and Debbie Nathan have built entire careers out of making that claim, often asserting at the same time that they are being ever so courageous to say these things. It’s the same courage it took to wear jeans in the 1960s.

    Citations to some of my empirical work on these topics:

    “Statutory Rape: An Empirical Examination of Claims of ‘Overreaction’” in Dowd, Singer and Wilson, eds., Handbook on Children, Culture and Violence (Thousand Oaks, Cal: Sage Publications, 2005) (co-authored with Laura Braslow).

    “What Hysteria? How Newspapers Cover Accused Child Molesters,” Child Abuse & Neglect 27(6): 607-623 (2003)

    “Child Molesters in the Criminal Justice System: A Comprehensive Case-Flow Analysis of the Rhode Island Docket (1985-1993),” New England Journal on Criminal and Confinement, 23(2): 267-301 (1997) (co-authored with Erica Goldschmidt)

  16. Dan Filler says:

    RC, I do count Megan’s Law as punishment. To say that it’s not punishment because it saves people from worse sanctions is like saying that probation isn’t punishment, because without it, more folks would have to be incarcerated. In any case, my sense – and no, it’s not based on quantitative data (though it is based on a data set that includes working these cases in a courtroom) – is that neither judges nor legislators sit down and figure out a nice matrix of alternatives that will allow offenders the greatest degree of freedom consistent with public safety. Both notification and stronger punishment for sexual offenders (see, e.g., the new interest in imposing death on child rapists) come from a the same political sense that there is a rampant molestation problem and that we need to get tough on offenders.

    As for statutory rape, my claim was that this offense is included in Megan’s Law even though many people might not think of it as the sort of child sex crime for which they intended the law. If someone is guilty of non-consensual rape, convict them. If you can’t convict, you have no business punishing them as if they’d committed non-consensual rape simply because non-consent crimes sometimes get pled down to statutory rape. And as for empirical data on the sorts of cases that make up statutory rape, again I plead personal experience: I saw several cases where statutory rape was charged when a kid got pregnant, or a parent discovered them. These didn’t seem to be non-consent cases. They were pled down to less serious offenses, in many instances, but those lesser crimes are still notification offenses in many, if not all, jurisdictions.

    I like quantitative studies, and I look forward to reading your work. But I also know that they can prove far less than the rhetorical claims they’re used to buttress. Case in point: you imply that your study undermines claims that molestation is overpunished. Lets first assume that we could agree on a single purpose of punishment – that is, let’s assume that we’re not talking past each other. Assuming your study establishes only what you say – that lots of people who are found guilty of first degree molestation in some particular jurisdictions don’t go to jail – you still haven’t even begun to disprove my normative claim. For all we know, given the facts of the cases, or the charging strategy of the DA, or the nature of the punishment scheme for other offenses, those levels of incarceration might have been outrageously high.

  17. RCinProv says:

    First-degree child molestation in my state is penetration of a child under 13 by an adult. If you think that there might be “given facts” that would make it appropriate for one-third of the people guilty of this offense — punishable by 20 to life — to do no time at all, I’d sure like to hear what those are. It looks to me like you are saying that you are not even sure if adults who sexually penetrate young children should be punished. If you find that a difficult and perplexing question then, yes, we are talking past each other. I cannot imagine *any* facts that would justify outcomes as lenient as those dished out on a systematic basis. The fact that you could claim that such outcomes might possibly be “outrageously high” is certainly revealing.

    Finally, you say you “like quantitaive studies.” But your arguments are all apparently based on anecdotes. Doesn’t it occur to you that for each of those anecdotes could undoubtedly be matched with ones that “prove” the opposite? I still don’t see any systemtic evidence for any of the many broad claims you have made through this post and comments.

  18. Joseph S Fulda says:

    Re: Professor Orin Kerr’s reference to my article and the Butner study. My article is published in the 15th Volume of the _Widener Law Journal_ running from pages 47 through 84. It totally discredits the methodology and validity of the Butner study.

    Personally, I think child pornography should remain illegal. In fact, any nude–or other–photos made w/o consent should be illegal. The only problem I have with the law is that it’s a “possession” law that dispenses with _mens rea_ and _actus reus_: In other words, I’d like to see the law modified so that “intentional acquisition” of child pornography is the crime. As it is, anyone can send any image to anyone else or plant it on someone’s computer and the mere possession (without even knowledge, let alone intent) is criminal.

    My article did not discuss child porn anyway, but Internet stings. These typically come up with people who are innocent of any actual behavioral, sexual crimes and are, for reasons argued in the law review at length, easily entrapped.

  19. Mikey says:

    As some of the comments here show, hysteria over this issue is alive and well.

    It is appalling that so many otherwise intelligent people fail to acknowledge the injustices being perpetrated in the name of saving our children.

    Registration may be characterized as clerical by the justice system, but it is nevertheless punitive in its effect. Remember stigma? Stigma is the reason we no longer have “separate but equal” – it’s that big a deal. Not all sex offenses are the same. I thought the Washington Post article was ironic in this regard; some Yahoo is quoted as saying that registration is important because of the high rate of recidivism among sex offenders. In fact, the rate of recidivism is very low with regard to most categories of sex offenders.

    Are the knee-jerk commentators aware that Congress has criminalized images that look like they involve people under 18, even when it is proven that no one under 18 is involved? That cartoons and sculptures are now criminalized? That there is an appreciable body of art that could be prosecuted as child pornography, but simply isn’t being prosecuted – i.e., that equal protection on this issue has been thrown right out the window and is being trampled in the street?

    The drug police, the sex police, the tobacco police, the trans-fat police … This self-righteous moralism is a peculiarly American sickness, an American perversity, and it is going to kill us as a free people.

  20. Clay says:

    I know that I am coming into the debate long after it occurred, but I read all the post and am absolutely appalled by many of the claims here. First of all you are citing 16 year olds and consent vs. non-consent. The idea behind the statutory rape law is that the child doesn’t understand the gravity and thereby doesn’t have the capacity to consent. So your argument that the child consented to the relationship or the photos is irrelevant in that regard. In my state of Colorado known to be conservative, a 16 year old can consent, and in most other states they can as well. However, a 13 year old can not have the capacity to consent to sex just because he/she might have an adult body.

    Mr. Filler you wrote “neither judges nor legislators sit down and figure out a nice matrix of alternatives that will allow offenders the greatest degree of freedom consistent with public safety.” I am not aware of any mandate or need to do so. When a person commits a crime that requires them to be removed from society, I don’t care about them having the greatest degree of freedom they can. I want the locked up for the betterment of society as a whole, hence the purpose of prison.

    Now to the actual issue, I investigate crimes against children and specifically sex crimes. I haven’t conducted any time consuming studies either, but in the 3 1/2 years I have been investigating these crimes exclusively, talking to offenders, and reviewing their evidence I can tell you a bit about it. Images of teenagers of whom we aren’t sure of their age are not charged. I might look at it and say I’m sure that kid is 14-15 years old, but unless they are pre-pubescent or are identified as being under 18 by an officer actually meeting that child, they are not chargeable. The vast majority of the offenders we come across are looking at images of prepubescent children. Some of them do include erotic poses; the vast majority are engaged in hard core sexual acts. An image of a child standing naked is not something that can be charged. Images with an erect penis or legs spread to expose the vagina are. We are not talking about anything of artistic value or benefit to teens as developmental tools.

    The concept that someone sent you an image or put one on your computer and you will get arrested simply shows a lack of true knowledge of how things are handled and what exactly were are doing out there. People don’t get charged for one or two images and for sure don’t find themselves in prison over it. The fewest images I have ever found one of these offenders to have is in the 20′s and most of them have in the hundred to tens of thousands.

    These images are also used to show children that sex is alright and break down their barriers so that the offender can achieve his goal of molesting the child.

    So called mere possession is a serious issue and you try to minimize it. This crime requires that we take it serious. These offenders are dangerous and need to be treated as such. Almost every state, including California has realized this and has increased their classification of this crime. Only three states remain where possession of child pornography is a misdemeanor and that might not last long.

    Lastly, it is far from over-prosecuted or over-penalized. Seldom does someone arrested for possession or distribution in my state end up in prison, although they should. Only a few states like Arizona have it right and lock these guys away.

  21. mike says:

    The opposing views in this debate make valid points. The purpose of criminal legislation is to protect the public. On the one side child pornography is evidence of a crime that has already been committed. Punishment serves as deterrence. No punishment would lead to an increase in demand, which would victimize more children. A very important question is raised, “How dangerous are those that possess child pornography?” Currently across the country, individuals that are convicted or plead to this offense are viewed as de facto child molesters and as such should be shunned and feared as predators. The Butner study seems to suggest that there is a signaficant relationship between the possession of child pornography and the physical molestation of children. It does seem to be flawed logic to extrapoliate to our entire society based on the behaviors of convicted pedophiles and their admission that they previously or concurrently view child pornography, which ignores the numbers of people who have viewed what can be classified as child pornography and never have physically offended.

    Sanity and research should be prominent in sex offender registration legislation. The over penalized issue rings true with regard to the one size fits all philosophy associated with sex offender registration. Once adjudicated, there are research and research based tools to aid in risk assessment including polygraphs. Registration is a devastating, all consuming life sentence, which has profound affects on their ability or inability to find work, housing or any type of normal life. Often times their families, which include children face tremendous hardships.

    I believe that romeo and juliet relationships as well as possession of child pornography should not be required to register as sex offenders in that the benefit to society is far outweighed by the cost. Punishment for these offenses are appropriate but not life sentences.

  22. Dr. McLaughlin says:

    A client, convicted of child pornography possession in federal court, serving a 37 month prison sentence, asked for clarification of the federal sexual offenders registration act and the necessity of registering. Specifically, the request involved a delineation and/or a differentiation of violent sex offenders(rapist) as opposed to a possessor of child pornography registration.In short, are there different rules or stipulations or graduations under the federal sex offender registration for lessor offenders as opposed to to more serious offenders?

    Dr.J.McLaughlin

  23. Rex says:

    The matter is in that people need to face the fact that the World finds young people attractive. Refer to Mr. Cullen’s revolutionary report on the issue. Mr Cullen is the World authority on that. Mr. Cullen’s report is found under the Suns Winnipeg thread under the Editorial Beware of Ignatieffs Common Touch. (Click the 2nd or third post) If you want to leave a comment click the Battle for free speech post and put one there. Read only the first 41 pages