Let me preface this posting by saying that I in no way endorse or support child pornography or the people who view and distribute it; however, this is a volatile area of the law and it needs to be explored. I personally believe that people who are struggling with pedophilia need to find the professional help that they badly need, and the law needs to be refined in such a way that allows them to get help while still being just in its enforcement. This post will examine the problem of child pornography in this country, and how the legal system interacts with the rapidly changing environment child pornography flourishes in: the Internet.
Child pornography (CP) is on the rise in the United States. Statistics show that there has been a huge increase in CP-related arrests; in 2009, there were 4,901 arrests made for CP, almost triple the amount of arrests made in 2000. While this may be because law enforcement is getting better at finding people involved in CP, the opposite may be true. The evolving technologies surrounding the Internet are actually making CP easier to access, while simultaneously making it harder for law enforcement to find and successfully arrest perpetrators.
The rapid growth of the Internet, while a positive factor in many ways, has made it easier for people to access, view, download, and distribute CP somewhat undetectably. Peer-to-Peer file sharing is one arena which has allowed CP to flourish; P2P, as its called, allows a “seeder” to share pieces of a file with downloaders, who then becoming seeders as well. It is a decentralized network; because no one is sharing a complete file, it is harder to track. Coupled with the use of proxies (fake servers that help disguise a users IP address) tracking down CP distributors is several orders of magnitude harder than it was thirty years ago.
One of the ways in which CP distributors are caught, however, lies in their communities. Like many fetishes, CP consumers often band together to share their collections, fantasies, and tastes. Unlike many fetishes, however, there aren’t many safe spaces in the real world for people who like CP to get together and talk about child abuse. The anonymity of the Internet provides the perfect place for CP consumers to “meet up” and find a community that shares in their predilections.
The Cache was one such community. The Cache was a collection of forums in which users posted and shared explicit photos of underage girls. In 2008, the DOJ brought down the Cache in an operation called Operation Nest Egg. At its completion, charges were filed against the individuals involved in the Cache, but namely against the Cache’s creator/admin, Roger Loughry. At his trial, the prosecution, seeking a guilty verdict, showed several incredibly graphic videos of CP to the jury. The jury then returned a guilty verdict. But then something went wrong: Roger Loughry appealed, and won.
On appeal, the Seventh Circuit Court of Appeals found that there was a problem with the videos shown to the jury at trial: they were not videos that were posted on the forum, but were actually from Loughry’s private stash. Rather, the prosecution’s usage of the CP videos was only to inflame the jury against him, as the videos were not related to the charges being brought against Loughry. The court held that the unfair prejudice outweighed the “minimal probative value” of the videos, and reversed, remanding for a new trial. Loughry was still convicted at his new trial, but his case raises an interesting question: whether the showing of any CP to a jury has probative value, and whether that probative value is ever higher than the monumental prejudice that showing CP in court has on a defendant’s case.
To review: it is getting harder and harder to catch CP consumers and distributers. But conversely, it is easy to convict them. In 2007, 2,197 individuals were defendants in CP-related cases; 9 out of 10 of them were convicted, an increase in the rate of conviction since 2006, where it was only 8 out of 10. Because of the lack of clear charging guidelines, prosecutors have almost unfettered discretion in what charges they can bring. Some prosecutors (52% of those surveyed) have expressed a desire for clearer guidelines. Most courts have to adopt either a case-by-case basis for CP sentencing, or have to strictly follow the guidelines. The federal sentencing guidelines call for a minimum mandatory of 5 years without parole for downloading CP, but require 15 to 20 years for “large amounts” of CP. However, they never set a numbered guideline for what constitutes a large amount, which results in huge discrepancies in sentences for similar cases.
Child pornography is a difficult area of the law as it is; just as law enforcement struggles to keep up with the rapidly evolving landscape in which CP thrives, the law struggles to keep pace with changing times. CP is deplorable, and prosecuting those who exploit children is a laudable goal. But the laws as written allow for gross discrepancies in sentences, abuse of prosecutorial discretion, and conviction regardless of actual evidence or proper procedure at trial. I do not endorse people who consume or distribute child pornography, but there needs to be a change in the laws to ensure that everyone has their fair day in court.