15 September 2011

Crusades and controversies

Reading 'The Child Pornography Crusade and its Net Widening Effect' by Melissa Hamilton in 33(1) Cardozo Law Review 1-58.

Hamilton comments that -
The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws. The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children. Yet the basis for the policy bears fundamental flaws, and this article explores them. The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators. It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders. The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.

This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation. It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses. In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm.
She concludes that -
As a broad criminal justice policy perspective, an obvious curiosity emerges: Have we not learned from the war on drugs? In the drug war, the United States wages battle without differentiating much among producers, importers, distributors, or users. It is mostly a bottom-feeding exercise whereby low level drug users are easy targets and presumably useful to bolster statistical measures of performance for criminal justice personnel. Seldom has law enforcement apprehended those most responsible for causing the greatest harm, i.e., drug producers. For this reason, the drug war is widely considered an abject failure, costing billions of dollars and contributing to prison overcrowding, yet without substantial reducing demand. The analogy here is that the war on child sexual abuse snares the more easily identifiable child pornography downloaders and traders, thereby attracting law enforcement resources to these offenders. Yet there is little or no evidence that this approach has yielded the expected deterrence value or has succeeded in protecting children. On the other hand, potential long-term negative consequences are probable. Where it appears that law enforcement initiatives have taken on a child pornography-centric approach, the campaign against child sexual exploitation has lost sight of what should be the primary interest—protecting actual children from sexual abuse. At the same time, as child pornography consumers are not the high risk offenders as presumed, resources are misdirected at imprisoning scores of defendants who do not pose a risk of future harm. Policymakers would seem to have an incentive to allow more rational minds to prevail.

So what are the potential alternatives that may more equitably balance protecting children without net widening to low risk offenders? It may be useful to reconsider the variations of harm and moral culpability interests proposed early on in this article. Public debate would properly explore these hypotheticals further, in isolation and in combination.
• the viewer is a 18-year-old male, 30-year-old female, or a 50-year-old man
• the child is age 6, 11, or 17 years
• the picture is morphed to appear sexually explicit, is of a naked child alone, or is of a child being sadistically penetrated by an adult
The first variation is relevant for both normative and risk-based reasons. As for the teenager proposed, several legal commentators have protested the application of child pornography laws to teenagers who are running afoul of them by rather innocuous behaviors such as sexting.One writer insightfully remarked that ― "[i]t is likely that minors prosecuted for child pornography are [] collateral damage to the breadth of laws designed to target pedophiles". While interested in protecting underage defendants, this observation helps make a broader point. What is the true scope of the ―collateral damage‖ of overly broad child pornography laws and is it justified? In the example posed earlier, the age of 18 was offered for ideological reasons. Many of those who would propose different rules for teenage sexters would limit them to those under the age of majority, so they would not cover individuals classified as adults yet still young. But is an 18-year-old male (or even one who is 19 or 20, for that matter) who downloads provocative images of pubescent and post-pubescent teenagers so repugnant that he deserves a 5-15 year sentence (in the federal system) for receiving child pornography? Actually, it might be normatively unorthodox for him not to be sexually attracted to teenagers, particularly to those within his peer group. The 50-year-old man is the easiest on whom to impose social expectations, though considering the prevalence of men with sexual attractions to young females, it is still open to debate in terms of normative boundaries. The 30-year-old female poses unease in terms of the age difference, but, on the other hand, women are at very low risk of sexual contact offenses. Yet child pornography laws do not generally consider gendered differences in morality or risk.

The age of the child has important policy implications, too. As domestic child pornography laws generally define a child as anyone under 18, one aspect of net widening becomes clearer. Do public morals truly find equally egregious a sexualized photo of a mature 17-year-old as it does a sexually explicit image of a 6-year-old? Is the harm to each childtruly equivalent and do they deserve the same moral antipathy? Modern society may be troubled by evidence of teen and adolescent sexuality. But, the criminalization and application of strict sentencing regimes to all sexual images of those under the age of 18 is unwarranted as a criminal justice policy and likely not demanded by current cultural standards. Much of the problem stems from the grouping of newborns through 17-year-olds into a single protected class. This amorphous class obscures the reality that modern culture recognizes roughly three categories of maturity: children, pubescents, and teenagers. Sexual norms vary widely among them, yet child pornography laws often do not.

Possibilities for policy change include altering the legal age of a minor for child pornography law purposes (such as lowering the upper limit absolutely to a lower number, such as 16 as it was in the federal system before 1988) or at least creating categories of ages with far more significant gradated differences between them. This issue is certainly not a novel one for public discourse. Debates about the appropriate age for legal consent to sexual activity and corresponding discussion about age disparities between partners in statutory rape laws have enlivened political and social commentary in modern times. More particularly, the current struggle with sexting may already be evidence that political figures are willing to discuss the issue of age—regarding both offenders and victims—in child pornography laws. Alternatively, more laws could be revised toward prepubescence rather than specific years in age, though that obviously raises additional definitional issues to be addressed.

As for the consideration of the sexual character of the image involved, international experts have recently noted the importance in distinguishing between child sexual abuse and child sexual exploitation. The latter may or may not involve sexual abuse but it requires other activities that violate a child‘s sexual innocence. Surreptitiously taking a photo of a naked or partially nude child, perhaps at the beach or swimming pool, may be exploitative but would not constitute the deeper harm of sexual abuse. There is also a need to differentiate the degree of exploitation involved in the material. A popular categorization is offered by the Combating Paedophile Information Networks in Europe (COPINE Project). It ranks the type of images on a scale of 1 to 10 from least to greatest harm: Indicative, Nudist, Erotica, Posing, Erotic Posing, Explicit Erotic Posing, Explicit Sexual Activity, Assault, Gross Assault, Sadistic/Bestiality. A useful purpose for such a ranking is that, from a punishment theory standpoint, crimes and sentences are appropriately based on the level of suffering involved. Thus, a system that strives for proportional and rational punishment requires laws that differentiate between unequal harms. The practicality underlying the ranking also calls into question the presumption that production necessarily involves sexual abuse. To the extent the child can voluntarily consent to an image being taken or the image is morphed, no sexual abuse may occur even if it is somewhat exploitative.

Still, several concerns held by child pornography crusaders should be addressed. One is the argument that there is value to pursuing child pornography offenders generally in order to reduce the production market. The market thesis, though, is more speculative and ideological than supported by experiential data. The global non-governmental organization End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) acknowledges that organized crime is rarely involved with child pornography. Furthermore, a United Nations report indicates skepticism that children are sexually abused for the sole purpose of making marketable product. The argument is also troubling on several other, though somewhat contradictory, grounds. Being illegal may also serve to encourage more consumers since many report that the unlawful nature is what makes the material more sexually enticing. From an economic theory perspective, just as the countrywitnessed with the war on drugs, the criminality itself could conceivably drive profits for those organizations who can charge for the material. In actuality, however, the Internet permits widespread trading and downloading of child pornography materials for free, thereby creating a disincentive to those who believe they can profit by creating new product. Nevertheless, even if the market theory were valid, it does not necessarily mean more live children will be used. Technological advances, even those generally available like Photoshop, permit producers to create quite realistic looking images, such as by morphing innocent photos of children to appear sexually explicit, compositing images using a combination of body parts from a child and adult, or digitally mastering entirely virtual, though lifelike, children.

Another argument for crusaders is the harm thesis, which contends that the Internet has increased the risk to children of the modern sexual predator. But research to date provides evidence to the contrary. Those attributes that are likely required to successfully engage young people online, establish a relationship, and convince them to meet make solicitors unlikely to be impulsive, antisocial, or violent. Besides, jurisdictions already maintain more specific statutes, along with harsh consequences, that criminalize these types of contacts. These include offenses involving the Internet-facilitated solicitation of minors for sexual contact and the grooming of children with the use of child pornography. Child pornography laws are therefore an unnecessary backdoor to deter those offenses. Further, the ideology of the modern sexual predator as a stranger lurking on the Internet is itself potentially dangerous to the safety of children. It obscures that the persons they might really need to be wary of are those closest to them since the vast majority of those who commit sexual abuse against the underage are family members, friends, and peers.

Additional impediments plague the theory that harsh consequences are necessary for child pornography because it whets the appetite of consumers to commit sexual abuse in the future. Any causal connection is far too contingent and remote. Besides, the contention that incarceration is justifiable based on the thesis that material with a deviant theme will cause the viewer to act out the theme is a slippery slope. It would theoretically countenance the criminalization of material with images of drugs, violence, terroristic activities, etc., that may equally invoke emotive responses and imitative behaviors.

Naturally, there is an entirely different approach society can embrace in response to a social problem. Instead of addressing it primarily as a criminal justice issue, a public health model may be more suitable. While it is beyond the scope of this article to fully address what such a response would entail, it is of note that there have been some great successes around the world in addressing relevant harms and risks. These include school-based programs to teach students about sexual issues and how to protect themselves from sexual harm, as well as public education campaigns that aim to improve the safety of youth on the Internet. According to the Internet Safety Technical Task Force, a professional collaboration tasked by the states' attorneys general to report on safe practices in social networking, web companies are active in employing effectual technological methods to seek out and restrict materials that may include child pornography and otherwise limit potential contacts with juveniles. In terms of the risk of child pornography consumers, sexual treatment specialists are working to improve prevention, treatment, and intervention strategies.284 It is of import that sexual offender clinicians believe that sexual interests are often malleable in nature and can be modified.