Revised Pages Refining Child Pornography Law The legal definition of child pornography is, at best, unclear. In part because of this ambiguity and in part because of the nature of the crime itself, the prosecution and sentencing of perpetrators, the protection of and restitution for victims, and the means for preventing repeat offenses are deeply controversial. In an effort to clarify the questions and begin to formulate answers, in this volume, experts in law and the social sciences examine child pornography law and its consequences. Focusing on the roles of language and crime definition, the contributors present a range of views about the increasingly visible role child pornography plays in the national conversation on child safety, as well as the wisdom of the punishment of those who produce, distribute, and possess materials that may be considered child pornography. Carissa Byrne Hessick is Professor of Law at the University of North Carolina School of Law. Revised Pages Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates sig- naled by each of the words in the title. Those debates have taken place among and between law- yers, anthropologists, political theorists, sociologists, and historians, as well as literary and cul- tural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them. Series Editors: Martha Minow, Harvard Law School Austin Sarat, Amherst College recent titles in the series Refining Child Pornography Law: Crime, Language, and Social Consequences, edited by Carissa Byrne Hessick The First Global Prosecutor: Promise and Constraints, edited by Martha Minow, C. Cora True-Frost, and Alex Whiting Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia, by John D. Ciorciari and Anne Heindel The Justice of Mercy, by Linda Ross Meyer Dying Inside: The HIV/AIDS Ward at Limestone Prison, by Benjamin Fleury-Steiner with Carla Crowder Sacred Violence: Torture, Terror, and Sovereignty, by Paul W. Kahn Punishment and Political Order, by Keally McBride Lives of Lawyers Revisited: Transformation and Resilience in the Organizations of Practice, by Michael J. Kelly Among the Lowest of the Dead: The Culture of Capital Punishment, by David Von Drehle Punishing Schools: Fear and Citizenship in American Public Education, by William Lyons and Julie Drew Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, edited by Timothy D. Lytton Transformative Justice: Israeli Identity on Trial, by Leora Bilsky Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality, by Benjamin Fleury-Steiner The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser Hussain Communities and Law: Politics and Cultures of Legal Identities, by Gad Barzilai From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller Pain, Death, and the Law, edited by Austin Sarat Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson Whispered Consolations: Law and Narrative in African American Life, by Jon-Christian Suggs Revised Pages Refining Child Pornography Law Crime, Language, and Social Consequences Edited by Carissa Byrne Hessick University of Michigan Press Ann Arbor Revised Pages Copyright © 2016 by Carissa Byrne Hessick All rights reserved This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publisher. Published in the United States of America by the University of Michigan Press Manufactured in the United States of America c Printed on acid- free paper 2019 2018 2017 2016 4 3 2 1 A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging- in- Publication Data Names: Hessick, Carissa Byrne, editor. Title: Refining child pornography law : crime, language, and social consequences / Edited by Carissa Byrne Hessick. Description: Ann Arbor : University of Michigan Press, 2016. | Series: Law, mean- ing, and violence | Includes bibliographical references and index. Identifiers: lccn 2015039989| isbn 9780472119769 (hardback) | isbn 9780472121663 (ebook) Subjects: LCSH: Child pornography— United States. | Child abuse— Law and legislation— United States. Classification: LCC KF9323 .R44 2016 | DDC 345.73/0274— dc23 LC record available at http://lccn.loc.gov/2015039989 Revised Pages Acknowledgments This book would not have been possible without the help and encourage- ment of many people. First, many thanks to Melody Herr, who first sug- gested that I explore the idea of a book on child pornography law, and whose tireless help and vision shaped the book as it appears today. Second, many thanks to Judy Stinson—an amazing associate dean and an even better friend— who encouraged me to pursue this project and who gave me the flexibility while I was on the faculty of the Sandra Day O’Connor College of Law to do so. Third, I am indebted to the University Research Committee at the University of Utah for awarding a research grant that allowed me to complete this book. I would also like to thank the many people whose research assistance helped me to complete this book: Beth DiFelice, Lee Warthen, Kristin Martinez, Amy Coughenour, Jennison Cox, and K. Clint Metheney. Finally, my deepest thanks and appreciation go to Andy Hessick. He read a number of draft proposals and chapters, which helped make this book much better. What is more, his unflagging personal support and his constant willingness to do more than his fair share of child care and housework gave me the time and the motivation needed to complete this professional project (and many others). Revised Pages Revised Pages Contents Introduction 1 Carissa Byrne Hessick Part I. Defining Child Pornography Crimes A. Constitutional Issues 1 | The Context and Content of New York v. Ferber 19 James Weinstein 2 | Setting Definitional Limits for the Child Pornography Exception 57 Carissa Byrne Hessick B. Consequences of the Legal Definition 3 | The“ Dost Test” in Child Pornography Law: “Trial by Rorschach Test” 81 Amy Adler 4 | The Language of Child Sexual Abuse and Exploitation 109 Mary Graw Leary Part II. Refining Child Pornography Law A. The Special Case of Possession 5 | Questioning the Modern Criminal Justice Focus on Child Pornography Possession 147 Carissa Byrne Hessick 6 | The Dignitary Harm of Child Pornography— From Producers to Possessors 165 Audrey Rogers Revised Pages viii | Contents 7 | Not Just “Kiddie Porn”: The Significant Harms from Child Pornography Possession 187 Paul G. Cassell, James R. Marsh, and Jeremy M. Christiansen B. Child Pornography Definitions at Work 8 | Challenges in Investigations and Prosecutions of Child Pornography Crimes 215 Wendy Walsh, Melissa Wells, and Janis Wolak 9 | A Critical Evaluation of the Federal Sentencing Guidelines for Child Pornography Offenses 235 Troy Stabenow 10 | Political and Empirical Controversies Threaten the Federal Child Pornography Guidelines 261 Melissa Hamilton Contributors 285 Index 291 Revised Pages Introduction Carissa Byrne Hessick The desire to have collections of a large number of photographs of children seems to be a common, although not universal, characteristic of many pedophiles. Some of this exchange of photographs takes place in person, a great deal takes place through the mails, and recently a significant amount of the exchange has taken place by the use of computer networks through which users of child pornography let each other know about materials they desire or have available. — Attorney General’s Commission on Pornography (1986) When Attorney General Edwin Meese published his report on pornogra- phy more than twenty-fiv e years ago, he could not have known how much computers and the Internet were going to affect child pornography. Tech- nological advances have led to a proliferation of child pornography im- ages. Technology has also wrought significant changes in the detection and prosecution of child pornography crimes. Simply put, the past twenty years have seen a child pornography revolution. In the decades since child pornography first came to the attention of the American criminal justice system, it has been the subject of many state and federal laws and a number of high- profile Supreme Court cases. Child por- nography is presently the focus of countless media stories, increasingly se- vere punishment, and some of the biggest modern sentencing controversies. Despite this sustained attention, the law surrounding child pornogra- phy is far from settled. Serious questions remain about what types of im- ages qualify as “child pornography.” The modern trend of increasingly harsh criminal sentences for those who possess child pornography has met with significant resistance from some judges. And whether there is a link between those who view child pornography and sex crimes against Revised Pages 2 | Refining Child Pornography Law children has become a hotly contested issue in the criminal justice com- munity. In other words, as a matter of language, as a matter of criminal sanctions, and as a matter of social policy, child pornography requires fur- ther study and reflection. Refining Child Pornography Law: Crime, Language, and Social Conse- quences adds nuance and depth to the public discussion surrounding child pornography. This volume brings together experts in law and related dis- ciplines who study child pornography law and the consequences of that law. Focusing on language and crime definition in the child pornography debate, this volume includes chapters representing a number of different views about the increasingly visible role child pornography plays in the national conversation on child safety, as well as the wisdom of the current legal penalties that are imposed on those who produce, distribute, and possess child pornography.