Comment on Carissa Byrne Hessick, The Expansion of CP Law. 21 NEW CRIM. L. REV. (coming soon).
As military defense counsel, we have had to deal with and address the “expansion” of CP into what is often referred to as erotica. Ms. Hessick notes an expansion of CP law to cover possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.
These prosecutions have expanded the definition of the term CP well beyond its initial meaning. What is more, they signal that CP laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.
She proceeds on a theory that, “This focus on the subjective thoughts of defendants is problematic. It changes CP law from an endeavor designed to protect children from harm to an effort to punish those individuals who are sexually attracted to children. This shift is inconsistent with CP law’s constitutional origins, and it creates incentives that may ultimately leave children less safe.”
She proceeds with the history of such laws and their expansion, some new statutory definitions, a critical analysis, and a conclusion that, “For now, the legal battle against CP rages on, despite the fact that current tactics do not appear well suited to actually protecting children from sexual abuse.
She does not discuss some statistics about possessors of CP and if they have a likelihood of actual offenses against a child. Certainly, many child offenders possess and sometimes use CP to aid in their crime, but that does not prove the reverse. This is not to say that possession of CP is not a risk factor. She does however address this in a different article. Disentangling CP from Child Sex Abuse. 88 WASHINGTON U. L. REV. 853 (2011).
Recent years have seen a significant increase in the criminal penalties associated with possession of CP. The new severity appears to be premised on arguments that blur the distinction between those who possess images of CP and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing CP increases the risk that an individual will sexually abuse a child, and arguments that those who possess CP are abusing children undetected. This Article identifies instances where possession of CP and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue and that when law enforcement statistics aggregate possession and child sex abuse, the public may be misled into believing that law enforcement is successfully battling child sex abuse. The Article concludes that the modern trend of increasing sentences for possession of CP ought to be reviewed, and it suggests several possible areas of reform.
Those who support the modern trend of increased sentences by conflating possession of child pornography with child sex abuse would likely dismiss many of the arguments in this Article. The lack of empirical support for a link between possession of CP and child sex abuse does not, in their view, suggest that lengthening sentences for possession is improper; rather, they see it as an obligation of those who would have shorter sentences to demonstrate that there is no link.208 Because the crime of child sex abuse is so terrible, and because longer sentences might promote public safety, those who support the modern trend have a very appealing and emotionally powerful argument in favor of modern sentencing severity.
See also, Jérôme Endrass, et. al., The consumption of Internet child pornography and violent and sex offending. 9 BMC Psychiatry 43 (2009).
Consuming CP alone is not a risk factor for committing hands-on sex offenses – at least not for those subjects who had never committed a hands-on sex offense. The majority of the investigated consumers had no previous convictions for hands-on sex offenses. For those offenders, the prognosis for hands-on sex offenses, as well as for recidivism with CP, is favorable.