Criminal defense lawyers have two reactions to cases involving possession of child pornography: either the lawyer does not take such cases as a matter of principle, or the lawyer takes the case with a sense of foreboding approaching despair. The law involving possession of child pornography is harsh; I will go so far as to call it savage.
An article in the forthcoming issue of the Washington Law Review offers limited hope. "Disentangling Child Pornography from Child Sex Abuse," Carissa Byrne Hessick, 88 Wash. U.L.Rev. (2010).
Hessick seeks to drive an empirical and logical wedge between the frequent claim that possession of child pornography is identical to, or worse than, the actual physical abuse of a child. These arguments are familiar. We justify long sentences by saying that if there were no market for prohibited images there would be no supply. Punish consumers and suppliers will evaporate. It is the suppliers, after all, who engage in hands on abuse. We saw how well that worked in the war on drugs.
This punishment by proxy theory raises troubling due process arguments, Hessick notes. It conflates actual harm with tangential harm. A person looking at a picture is not abusing a child, except in some attenuated, metaphorical sense. Indeed, there is little empirical evidence to suggest that looking and touching are related. Hessick goes so far as to assert that there is no empirical evidence linking actual abuse of children with mere photographs. Indeed, Hessick notes, even the National Center for Missing and Exploited Children reports that in 84 percent of child pornography cases there is no empirical association between possession of pornography and actual abuse of children. One study even suggests the contrary: that in an era in which pornography is freely and widely available on line, men are actually less libidinous. (I have my doubts about that; the rage to procreate is as powerful as the desire to eat.)
Hessick notes that in some states penalties for possession of child pornography can actually be more severe than the actual abuse of a child. In Arizona, for example, the law permits a sentencing authority to impose a 10 year sentence for each prohibited image in a defendant's possession. Thus, the Arizona courts have upheld a sentence of 200 years for a man convicted of possessing 20 images. In such regimes, rational predators actually have a greater incentive to abuse actual children than to look at dirty pictures. Yes, Virginia, the law really can be an ass.
Hessick repeats the common observation that the risk of stranger-danger is vastly overstated. While cases of the abduction of children by those unknown to them are terrifying, they account for only seven percent of child abuse cases nationwide. Hessick wonders whether child pornography laws aren't really a weapon shooting at a fictional target -- the dirty old man seeking to gain entry to the home of an innocent stranger by barging through the computer screen. The real danger of actual abuse comes from those known to the child, a relative or caregiver with regular and unsupervised access to children. Focusing on child pornography displaces the anxiety about what is going on in our own homes when the lights go out.
A moral panic sweeps legislative chambers from one end of the country to other. Everywhere, sentences for possession of child pornography increase. Most judges are afraid to stand against this tsunami of grief for fear that they too will be swept away in the same crazy and unreasoning energy that brought us prohibition and a war on drugs. I recommend Hessick's article. It doesn't solve the problem of an unreasoning law applied in an unthinking manner. The article merely arms willing practitioners and reformers with the conceptual tools necessary to advance the cause of justice.