A Brief Examination of Child Pornography and the Modern Legal System

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.

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~ by otd256 on October 4, 2015.

10 Responses to “A Brief Examination of Child Pornography and the Modern Legal System”

  1. After doing the reading for the week, I am worried about you researching this topic!! I’m not sure all of the articles that Prof. Jacobs sent you, but you should read 1 or 2 of the stories on this that she linked the class to. I’m sure, unfortunately, that you have and will come across similar stories as you do your research. This area of law is really interesting because of how complex it is. Reading your posts and reading our reading makes it seem like there might be a problem where we are trying to get too many convictions just to have them. It’s almost like courts and law enforcement are going above and maybe too beyond in order to say “look, we’re doing something about child porn!”

    And, while I am not the most informed, that’s my impression so far. I do not think that is a good thing. Like some of the readings have told us, this kind of stuff damages peoples lives forever. For law enforcement and others to go to that extent is too far, but how much can you blame them? Are the laws in place the reason it’s happening? Is it just the nature of that area where convictions are the most important thing?

    The law is trying to evolve, but like you said, the internet can make it harder sometimes. Especially with proxy’s and different IP’s. I think the story we read about two 16/17 year olds getting in trouble for sexting is ridiculous. That is not the intent of the law. One of the quotes in that article discusses law enforcement saying the kids are being immature and that the law is saving them from themselves – I find that ridiculous. If they were 1 or 2 years older then no one bats an eye. They are doing something consensual.

    I am really interested to see where you go with your paper and what other cases and stories you can find. Thanks for the post. Look forward to the discussion in class.

  2. I agree that this seems super tricky. The crimes are obviously deplorable, but that should not give prosecutors cart blanche to do whatever they want and take shortcuts.

    I found the story about the lawyer who was charged while doing what he said was research for a case to be troubling. It seems like we should be technologically advanced enough at this point to know whether someone actually purposefully is distributing material online or merely using software that allows someone to take files from their account. The fact that the prosecutors seemed to have no interest in making a distinction was rather troubling.

    As the post said, I can understand why there would be a greater sense of urgency to prosecute when it is getting harder to catch pedophiles due to rapidly evolving technology. I can understand this impulse given the subject matter of my paper (online copyright infringement), but hopefully clearer charging guidelines are enacted and authorities becomes more sophisticated with their online protocol so as to allow for effective yet legally sound prosecution.

  3. This topic is really tough. Your blog posts raises some interesting questions regarding prosecutorial discretion that our assigned readings also discussed. In your post, it seems like prosecutors want more guidance when it comes to prosecuting child pornography. When we are talking about adult individuals who possess or share images of children, I think the criminal guidelines and sentencing guidelines should be different from situations where two teenagers are sexting. In the article we read about the two teenagers from North Carolina, I was so surprised that these two teenagers were being criminalized for consensual texting. I think the prosecutors in those cases overreached, probably trying to set an example of these two teenagers and to deter other teenagers from engaging in this behavior. I think sexting is completely different than possession, distribution and facilitation of child pornography.

    With regards to the Loughry case you discussed in your blog, I think the videos used against him were entered into evidence improperly. If I were his attorney, I would have argued the videos were irrelevant and went to bad character evidence. However, you raised a question asking when the probative value of child pornography videos would outweigh the unfair prejudice to the defendant. I think it depends on what other evidence is available to help make the case. Also, children are usually the victims of these cases. I think it is important to try to protect the victim as much as possible. To me, showing a video is like using a surveillance video during a crime. If the defendant is holding the smoking gun in the video and the video was collected constitutionally, I think its probative value is greater than the risk of unfair prejudice. The nature of this crime is so dark that I think the chances of there being any risk of unfair prejudice to the defendant is probably scarce unless something was done unconstitutionally.

    Overall, very interesting read. Looking forward to our class discussion.

  4. I certainly agree with your sentiment about there needing to be a system in place to help those who may be dealing with sexual attractions to/of/involving children. For me, the line is drawn when someone actually commits a crime involving such things. But for people who are out there, who are finding themselves as being a part of this “fetish” or what have you, they need to be able to find some sort of emotional and psychological assistance without fear of being turned into monsters for something they don’t actually want to be. This is especially so when considering how so often these kinds of pediphilic tendencies come as a result of having be a victim of these same things themselves, or at least some sort of sexual abuse. Viewing it in regards of, these people were once children who were abused and grew up to continue the cycle because we as a society failed to assist them with their traumas, is something we need to grapple with when we automatically condemn these individuals for subject to an illness they want no part of.

    Then, in dealing with those who do in fact commit acts upon children and/or break related crimes, it is deeply concerning to me that the case the post referred to was overthrown on appeal. Perhaps it is my general ignorance, but for the prosecution to display CP footage that didn’t even have to do with the specific charges themselves (just showing files the Defendant had on his computer), seems to be an elementary mistake that could have easily been avoided. I would think that any imagery, or even descriptions, of CP would be enough to invoke a negative reaction in any jury. So why did they select specifically unrelated CP material to display? Because they wanted that much more of a reaction? I would think that the transmitted files that were at issue in the case should have sufficed. I can’t imagine a jury being overly sympathetic to a trafficker of CP materials.

  5. I thought the reading for this blog was incredibly interesting. I could not believe the article about the two teenagers that were sexting consensually. I don’t understand how the girl is capable of being a victim and a perpetrator at the same time.. that is so contradictory. Another thing I thought was really interesting is that jurisdiction for juvenile court in North Carolina ends at age 16. So they were prosecuted as adults for possessing child pornography. I really feel terrible for those kids because their lives will forever be changed because of this. I think it’s incredibly important to protect children and I know children are usually the victim’s in these types of cases. But I think the prosecutors time would be much better spent going after an adult possessing these images of children rather than two consenting kids that are in a relationship.

    The article about the attorney charged with possessing child pornography was also a great read. It’s scary that the federal government would not recognize the state immunity statute. I am actually very grateful that Limewire is not readily available anymore. Someone could easily end up with pictures or videos on their computers that they did not know were there while trying to download a song. I give that lawyer that faced those charges major credit for not revealing the identity of his clients. That was another example of a case where prosecutors time could be better spent. I don’t understand why they would waste valuable resources on a case like this when there are so many people out there that truly should be prosecuted.

  6. This was an interesting read and a well written blog. I was looking forward to your blog because I know how many cases of child pornography you observed over the summer while interning. I look forward to reading your actual paper!

    I also echo what my peers are saying in regards to how unfair it was for the two teenagers to be criminalized for consensual text messaging. I remember briefly discussing this in your Criminal Law class. I think that teenagers do make mistakes and should not be criminally punished for sexting when they both consented to it. I’m sure they would have learned from their mistakes by simply being spoken to by a responsible adult but now their lives will forever be changed.

    I think child pornography is a touchy subject for many! Everyone wants to protect children and set an example to the public about the consequences one will face by possessing these items. Unfortunately, sometimes prosecutors take it overboard, as they did with the two teenagers.

    I also agree with Will and Corey when they said that some sort of system should be available to those who have urges regarding children. These individuals have psychological issues and should seek LONG-TERM therapy to help them overcome those issues. That being said, when people follow through and act on those urges, they should be criminally charged!

    I look forward to discussing this topic on Wednesday!

  7. The readings that Professor Jacobs gave to us presented the unintended consequences of good intentioned laws. I agree with the other commentators that both the lawyer and the teenagers were made targets of these laws created to protect children from victimization at the hands of pedophiles, when the law probably never intended to go after them at all. In the case of the lawyer, it is clear that state law almost certainly would have protected his conduct.

    One item not really discussed at length and something I wondered, was how would prosecutors treat any of the anonymous hacktivists that took down the child porn dark web site? They clearly broke laws to take down those sites but do we live in a society that wants to allow that kind of vigilantism? Both sides of the debate are problematic. Do we want to stop those individuals talented enough to take down these dark websites? Or, do we want to say criminality is good when done under good pretenses? I look forward to discussing this more in class.

  8. One of my concerns regarding the child pornography issue is that I’m not sure these long prison sentences are really deterring anyone or helping the offenders to not re-offend when they get out. While I’m not sure how much pedophiles can be helped, I think it is worth it to try something that may work better than putting them away for long periods of time. I agree with some of the other commenters above me that counseling may help.

    That said, it is a terrible crime and one that should be taken seriously, but perhap,s as others said, the police and prosecutors are targeting the wrong individuals. Intent is key in these types of situations. What justice comes from prosecuting two teenagers for voluntarily sending photos of themselves to each other? Or an attorney researching a case?

    It was interesting to see in that one article we read that the group Anonymous has been taking down child porn sites. To me, that seems like it may help the fight against the sharing of these photos more than individually prosecuting people. However, I’m sure as one site goes down, others come up.

    I look forward to discussing this in class this week.

  9. Very interesting reading and blog this week. Until the Jared Fogle story of late I don’t think this is an issue that garners a lot of media attention but it is certainly of importance. I think Drew raises an interesting point about Anonymous removing the CP site off the dark web. Private companies like Google and Apple are known for paying rewards to users that can expose system vulnerabilities. http://www.bbc.com/news/technology-33552195 In those instances the “angel hackers” are certainly violating laws but their intent is to help the vulnerable organization. So even though the actus reus is present, prosecutors would struggle to demonstrate the mens rea necessary to convict these helpful persons.

    As for these egregious abuses of police power that landed the teens and attorney in trouble, they almost bring to light the change that is needed. Certainly the Fed has a compelling interest in controlling CP especially because technology including facial recognition makes the risk of intrusion even greater in the future. What if you could upload a picture of a person and all other pictures of that person on the internet would come up — the 17 year old sexter could have problems later in her 30’s (assume I am referring to a 17 year old whose consensual sexting was never publicized). So while I completely agree the prosecution was unwarranted, I can understand the “protecting them from themselves” argument insofar as none of us, government included, are able to foresee the risks of such images being out there in the digital world 5, 10, and 100 years from now.

    In light of recent gun violence, the discussion about mental health issues seems to be relevant here as well as numerous posters have brought up. Are these issues symptoms of a greater problem with mental health? Usually I always have some ideas for policy to address the issues I discuss but I feel at a loss here. 18 USC 2251 – 2260 seems to address everything I would want it to. So what is the problem? Maybe if Jared Fogle and some other notables get severe federal sentences that would deter the activity, but maybe it won’t. Or, is it unfair of us to say there is a problem with the current law? Said differently, what amount of CP crimes are tolerable to our society or must we be willing to accept some amount of CP crimes? Is a goal of ridding ourselves entirely of these criminals and their “work product” realistic?

  10. The child pornography discussion is a difficult one and it saddens me that in order to write about it, there had to be a disclaimer at the beginning. We should be able to discuss any legal subject without fear, but reality unfortunately makes this not possible. Thanks for being brave enough to post on the topic.

    Now, having said that, there a quite a few problems with the prosecutions. Yes, we want to get the people who produce and possess child pornography. But, in many ways these prosecutions have become like the so-called “War on Drugs.” The government gathers up the possessors more quickly than it does those who are creating the pornography. Hopefully in class projectgodfrey will speak more about the issue of the focus on the possessors as opposed to those producing.

    I would also like to hear some more about the U.S. Sentencing Guidelines and how they play out in the CP context.

    In class, we should also discuss how prosecutions can run off the rails and whether the new rash of prosecutions for production of child pornography when teens engage in sexting seems appropriate. Is this what legislators intended or envisioned when production of child pornography laws were enacted?

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