The Wall Street Journal has an interest in its Law Journal column. And what better way to generate a response than to write about the criminal penalties for possession of child pornography.
It is hard to believe people are divided on the sentencing for these criminals. It seems that some folks think that the length of the sentence for possession of child pornography should somehow be related to the propensity of that person to commit a different crime.
Somehow the question being asked is, “Is this person capable of raping a child?” If a judge thinks the perpetrator is capable “only” of possessing and trading child pornography, then the sentencing guidelines are thrown out and a lighter sentence can be handed down.
It seems as if possession of child pornography in and of itself is not a crime in the minds of some folks!
It also appears these same people, from judges to mental health professionals do not understand a simple fact about the possession of child pornography:
Child pornography is not a victimless crime.
Carrying a concealed weapon without a concealed weapons permit is a victimless crime. The simple act of concealing a weapon in and of itself harms no one.
But having a pornographic image of a child is the direct result of unspeakable harm to that child.
It is also a photo of the victim at the scene of the crime as the crime is being committed.
If you accept this as true, then it follows that demand for child pornography creates victims.
In an attempt to satisfy demand (whether this demand is the perpetrator’s demand for future reliving of the crime or a market demand for “product” in the form of video and still images), children are raped, abused and exploited.
And as they suffer, someone is filming them for pleasure and/or profit. Those images will be uploaded, sold and downloaded. And each one of them is evidence of a crime.
Second, comparing sentences between different crimes in order to establish uniformity or relativity in sentencing across the board is illogical.
There is no law or universal truth that says sentencing among unrelated crimes must be relative. It is also illogical to sentence someone for one crime based upon his or her propensity to commit a different crime!
Sentencing guidelines for one crime should be based upon that crime only. And sentencing within those guidelines should not be relative to the sentencing guidelines of a different crime for which the accused was not tried or adjudicated guilty. Certainly sentencing should not be based upon whether the guilty will, in the future, commit a different crime.
If we as a society are uncomfortable with the comparative disparity in sentencing between crimes, then the sentencing guidelines for each crime should be reviewed independently of the other. But I do not believe we should dole out shorter sentences for one crime in an effort to magnify the sentencing potential of another crime in an effort to “keep it all relative.”
Also, it is a fallacy to conclude that because one crime is perpetrated year after year sentencing for that crime should necessarily be greater than another crime committed once. It is the nature of a specific crime that should determine sentencing – not the comparative length of time one crime has continued versus some other crime.
Finally, people who rape children are criminals of the vilest sort who deserve the same leniency they offered the child or children they raped.
Memorializing their crime and sharing it with others through audio and video is the work of someone who is not ashamed of what they’ve done. They aren’t sorry for putting their sick impulses above the needs of an innocent child.
In fact, they use children to satisfy their impulses regardless of the impact it has on those children.
People who knowingly download images of children being exploited, raped and tortured are criminals. They are participating in a crime against a child.
You may argue this person did not rape the child and I would respond that I am not accusing that person of committing the rape. But the nature of their demand hurt that child and the nature of their demand made that child a victim.
Therefore, that person is an accessory to rape. And in addition to being charged with possession of child pornography, they should be charged as an accessory to rape.
That is your basis for stronger criminal penalties for people who possess child pornography and commit internet crimes against children.
Furthermore, when considering sentencing for possession of child pornography, a judge and jury should not consider whether the guilty will rape a child in the future.
Instead, the jury and the judge should consider whether that criminal will be an accessory to rape again in the future. Then we will have no grey area where sentencing is concerned.
So when the discussion leans toward comparing sentences between someone who downloads images or videos of a child being raped and someone who rapes a child, I put my hand up and shout, “Stop!”
Neither of these crimes are victimless. Both are heinous.
Without a second thought, the sentencing guidelines should be considered independently. And both should include jail time and capital punishment.
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