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Child Pornography's Forgotten Victims

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Child Pornography's Forgotten Victims Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2008 Child Pornography's Forgotten Victims Audrey Rogers Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Criminal Law Commons, Juvenile Law Commons, and the Science and Technology Law Commons Recommended Citation Audrey Rogers, Child Pornography's Forgotten Victims, 28 Pace L. Rev. 847 (2008), http://digitalcommons.pace.edu/lawfaculty/541/. This Conference Proceeding is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Child Pornography's Forgotten Victims Audrey Rogers* State legislatures>and Congress have enacted many laws to protect children from becoming victims of sex crimes. Yet, chil­ dren live in an increasingly dangerous world attributable in part to the explosive growth of the Internet. In particular, the Internet has dramatically increased access to child pornogra­ phy. With just a couple ofclicks ofthe mouse and a few strokes ofthe keyboard, a person can find any type ofpicture, including graphic images of children being tortured and raped. Neverthe­ less, some judges, scholars and members of the public at large treat possession of child pornography as a victimless crime. This paper examines this phenomenon. The Supreme Court has carved out child pornography from First Amendment protections because children are harmed in all aspects of its production, dissemination and possession. While there is little serious debate over the harm producers and distributors inflict on children, this view does not always extend to possessors of images. For example, following the demise of mandatory sentencing under the federal guidelines in United States v. Booker,! a number of United States federal district court judges have deviated substantially from the guidelines in sentencing possessors of child pornography on the ground that it is a victimless crime? One federal circuit court treats the children depicted in pornographic images as merely secondary * Associate Professor of Law, Pace Law School. 1. 543 U.S. 220 (2005). 2. 18 U.s.C. § 2252(b)(2) (1999) provides that a person who possesses or at­ tempts to possess child pornography "shall be fmed or ... imprisoned not more than 10 years. or both ...." In contrast, the statute provides for minimum sentences ofno less than five years for transporting, receiving, distributing or pos­ sessing with the intent to sell child pornography. 18 U.s.C. § 2252(b)(I) (1999). The producer of child pornography is subject to a statutory minimum imprison­ ment of fifteen years. 18 U.S.C. § 2251(e) (1999). The United States Sentencing Guidelines provide a framework for calculating the appropriate sentence within the statutory range.. See, e.g., U.S. SENTENCING GUIDELINES MANuAL § 2G2.2 (2007). 847 848 PACE LAW REVIEW [Vol. 28:847 victims, and many states impose lenient sentences on posses­ sors of child pornography. The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims.3 It will then trace factors that may have contributed to the percep­ tion that possession ofchild pornography is a victimless offense. The first factor is the dual nature ofthe child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears at­ tenuated because the possessor is not involved in the acts of sexual abuse inherent in producing the images. The second fac­ tor is that a number ofscholars have criticized generally posses­ sion offenses as a tool for preemptive prosecutions, but they have not exempted child pornography from their condemnation. Finally, technology itselfis a cause. The growth ofthe Internet and the ability to find images from the comfort of one's home further weakens the connection between the victim and the viewer; this distance is exacerbated by a general sense that nothing is real in cyberspace. 1. Evidence of the Problem Congress and all states outlaw the possession of child por­ nography. Yet, judicial treatment of those convicted of posses­ sion of child pornography reveals a perception by some courts that it is a victimless crime, as the following examples illus­ trate. Stefan Goff, a fifty-four-year-old elementary school teacher appeared to be "a respectable, middle-aged man leading a decent, law abiding life."4 However, his computer told a dif­ ferent story. It held 360 different pornographic images of chil­ dren. Some showed an adult performing oral sex on a pre­ pubescent girl, and others showed children being raped and mo­ lested. Yet, his attorney claimed that this was a victimless crime that did not warrant serious punishment.5 The district 3. It is this perception, not the specific sentence the courts imposed, that is problematic. Thus, this paper's goal is not to recommend longer sentences; rather, it is to ensure that sentences accurately reflect that those who possess child por- nography hurt real victims. • 4. United States v. Goff, 501 F.3d 250, 251 (3d Cir. 2007). 5. ld. at 253. 2008] CHILD PORNOGRAPHY'S FORGOTTEN VICTIMS 849 court agreed, sentencing Goff to four months' imprisonment, far less than the Sentencing Guidelines' suggested minimum sen­ tence oftwenty-one months.6 In rejecting the prosecutor's posi­ tion that possession of child pornography was a serious offense" the district court, during sentencing proceedings, stated: "'[It's] truly a psychological crime. It is not a taking crime.... Almost one might say a psychiatric crime.'''7 Bruce Pugh pled guilty to possessing'sixty-eight images of child pornography, including images ofan infant being raped by an adult and an eight-year old girl performing oral sex on an adult male.s The district court ruled that the defendant's pos­ session was "passive and incidental" to his goal ofmeeting peo­ ple online and sentenced him to five years probation." Similarly, the defendant in United States v. Goldberg'°received a one-day sentence for possessing images oftwo- and three-year olds being raped. In support ofthis sentence, the district court stated that the "defendant was not a real deviant becaus~he had committed the crime out of 'boredom and stupidity.''''' Even federal circuit courts are not exempt from the view that possession is a victimless offense. A pre-Booker split devel­ oped among the circuits concerning whether, for the purposes of the Federal Sentencing Guidelines, they should group as one the multiple counts ofpossession ofchild pornography.'2 Ifthey are not grouped, multiple counts of possession would increase the severity of the sentence. The Federal Sentencing Guide­ lines state that multiple "counts involving substantially the same harm shall be grouped together into a single groUp."13 Whether the counts involve "substantially the same harm" de- 6. ld. Goff was also sentenced to three years' supervised release and a $10,000 fine. 7. ld. 8. United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008). 9. ld. at 1187. 10. 491 F.3d 668 (7th Cir. 2007). 11. ld. at 671. See also United States v. Polito, 2 No. 06-30133, 2007 WL 313463 (5th Cir. Jan. 31, 2007) (one year house arrest and five years' probation); United States v. Peterson, No. 03-2078, 2003 WL 22952189 (8th Cir. Dec. 15, 2003) (six months' house arrest and three years' probation). 12. Compare United States v. Toler, 901 F.2d 399 (4th Cir. 1990) with United States v. Sherman, 268 F.3d 539 (7th Cir. 2001), United States v. Norris, 159 F.3d 926 (5th Cir. 1998), and United States v. Boos, 127 F.3d 1207 (9th Cir. 1997). 13. U.S. SENTENCING GUIDELINES MANuAL §3D1.2(d) (2007). 850 PACE LAW REVIEW [Vol. 28:847 pends on whether they involve the same primary victim." The Commentary to the Guidelines notes that in most cases there is an identifiable victim-the "one person who is directly and most seriously affected by the offense."15 It further provides that if the victim cannot be identified, the primary victim for the pur­ poses of grouping. is "society in general." The Commentary specifies that crimes where society is the victim are "victimless" crimes.'6 The Fourth Circuit, in United States u. Toler,17 held that the primary victim in child pornography offenses is society in general, not the specific child depicted. IS It placed the offense in the category of victimless crimes by reasoning that trafficking in child pornography harms the "moral fabric of society at large."'9 Thus, the Toler court focused on the future harm that could be inflicted on children if the market for child pornogra­ phy is not dried up, rather than on the particular child being depicted."o Post-Toler appellate courts have rejected its reasoning.by focusing on the actual harm inflicted on the children portrayed in pornographic images. As the Ninth Circuit stated, the crea­ tion and distribution ofchild pornography creates a "permanent record of the children's participation and the harm to the child is exacerbated by their circulation."21 Child pornography is therefore different than crimes such as drug and immigration offenses, where the harm is spread evenly throughout society."2 According to all the circuits that addressed the issue (except the Fourth Circuit), this direct victimization theory rationale ap- 14. Id. § 3D1.2(b). 15. Id. cmt. 2. 16. Id. 17. 901 F.2d 399 (4th Cir. 1990). 18. In Toler, the defendant was convicted ofviolating 18 U.S.C. § 2423 (2006) (interstate transportation ofa milior with the intent to engage in prohibited sexual conduct) aud 18 U.S.C.
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