Effective laws against child abuse images are critically important in deterring the abuse itself and reducing the ongoing trauma suffered by its victims. In order to serve these objectives, legislatures and police should focus on the abundance of clearly harmful and abusive images over content that doesn’t depict real minors being abused, as well as prioritizing production and distribution over possession offenses.
Law enforcement agencies report a large backlog of unprocessed reports of images of real children being sexually abused. In this context is difficult to comprehend the expansion of child pornography law to include non-abusive images and even text content. (Note that although “child pornography” is no longer a favored term for abuse images, it is still the name used in U.S. law, and we use it in that context only.)
The best recent example of this expansion is the conviction last month of Thomas Arthur, the administrator of an erotic fiction archive, for hosting stories that described fictional acts of child sexual abuse. The charges were brought under obscenity law, an unfocused doctrine that differs from child pornography law in that it doesn’t require that any actual children were depicted or harmed. Another example is New Jersey’s 2018 expansion of its law to criminalize the possession of child erotica—a vague concept that includes clothed photos of children that prosecutors claim are sexually suggestive.
Given our failure to contain the explosion of more serious forms of abuse imagery over the last several years despite severe penalties, does it make sense for our state legislatures and congress to expand the law to include non-abusive and legal images and stories?
Defending against unjustified prosecutions
We don’t often consider the importance of public defenders and defense attorneys, especially in child pornography and solicitation cases. Defense attorneys are seen as the “bad guys,” and those accused are seen by the public and media as immediately guilty. The problem is that child pornography law is incredibly complex, and so are child pornography cases. Child pornography law needs to be clear, not subjective.
Law professor Carisssa Byrne Hessick has argued that under current U.S. national legal standards this is not the case, as prosecutors can charge someone with child pornography possession over a non-pornographic image, an innocuous one, if it is posed in such a way that the “perpetrator” could be aroused by the image. The picture is not abusive, and the child can be fully clothed. Is the prosecutor charging a person for a crime committed against a child, or for arousal to a picture or video? Such expands child pornography law so recklessly that now all images of someone 17 or under can become contraband. It’s just how a person looks at the image that makes it criminal.
The problem with enforcing morality
In fact, Dr. James Gilligan, a psychiatrist that worked with violent offenders for years says that attempting to enforce morality is the problem. He says that no one goes out and commits an offense for immoral reasons. They just think the law is wrong. The point is that we often use morality as a reason to harm others. As we saw with the recent violence in the U.S. Capital, a person will chant, “Hang Vice President Pence” because they feel the Vice President betrayed them. There is a moral imperative. I am better than you, so I get to decide what happens to you. Are not these states making their disgust toward something a criminal act?
The problem with child pornography cases is that to use a term Jesse Bering noted in Perv, the Sexual Deviant in All of Us, the legal system and the public are reacting with disgust which drives “the visceral engine of hate.” Laws are then set up with vengeance and are not based on science or on public health. Hessick writes that many police focus on possession crimes because these are the easiest to find and prosecute, but the focus, she argues, should be on those distributing and producing these images. It is not. Though possessing child pornography is harmful to the child victims, focusing police resources on possession, where re-offense rates are extremely low and most are first-time offenders, means devoting relatively less attention to the more dangerous mixed offenders or producers. Turning this around would focus resources on much more harmful content and prevent these videos from being made and distributed. Production involves contact offending and grooming.
New legislation like the CREEPER Act, which may be reintroduced in 2021, and the expansion of child pornography law to include non-abusive images, toys, fiction, and artistic images of kids (dance, gymnastics, stock photos) will pour gasoline on an already out-of-control fire. Our prisons and registries, already overflowing, will risk total collapse, as thousands if not millions of moms, dads, and kids could get arrested and charged as sexual predators. Children that experience real, severe abuse will be drowned out by prosecutions over child-like sex dolls, fiction, and non-abusive images of kids. What is missing in the Courts and on prosecutor’s desks is science. How are these materials that have non-existent victims or legal images of kids, harmful or contributing to child sexual abuse?
International moves to loosen child pornography law
The United Nations is violating its own Charter on Human Rights in its attempts to expand child pornography law to include “child exploitation materials” such as fictional books, cartoons, sex dolls, or any depiction of anything childlike. This decision was not done by looking at science, proof that these things are harming kids; rather, it was a group of ethicist and moralists that the UN sees with high regard. The problem is that these highly regarded individuals are not scientists or public health experts. Such has now created the “non-existent victim” and the sex offender of the non-existent victim.
To show the horrific impact laws like this can have, one can sit down, draw and image, hold it up on Zoom, and then be charged not only with the production of child pornography. They also can be charged with the distribution of it across state and international lines, and, of course, possession. Who is the victim? The drawing. If I have a picture of a minor gymnast on my computer, all the prosecutor has to prove is that I have it for sexual reasons. I become a sex offender, she a CSA victim.
Mass incarceration is not the answer
Often, the Butner Federal Prison studies are quoted as evidence that child pornography possession offenders do, in fact, have real life victims, as Hessick notes. From my and others’ observations, the Butner studies are unethical and biased. The studies are seen as outliers among leading experts. Many inmates use self-reporting, and they are only able to stay in the program and receive preferential treatment in prison if they confess to additional crimes, so inmates report making up and sharing fictional stories as real ones to stay in the program. They also report being coerced by staff to give the answers the staff wanted.
So, what does all of this have to do with protecting children? Locking people up over non-abusive images does not prevent crime. There will always be mentally ill people. There will be people, millions, that are attracted to kids. And there will be some that are malevolent, and malevolent people do not listen to laws; it’s the nature of those anti-social or with other personality disorders. Lawmakers and our police need to focus on the most harmful and dangerous acts against children. Focusing on production and distribution of explicit and clearly exploitative images of children should be the focus, not fictional images, toys, and legal images of kids. More effort needs to be put in helping those before they offend, offering support to those child-attracted and offering them safer alternatives, not taking what little protective factors they have away from them.
If we want to protect children, we need to take science seriously and do as the scientists do: focus, not over-generalize. As we expand the child pornography law, we will get more and more offenses. If we make cartoons, fiction, and child-like sex dolls illegal, and our child competitive dancers illegal, the incarceration rates will explode. How is this approach reducing child abuse, when the focus shifts from explicit and harmful sexual images to that of non-existent characters or non-pornographic content?
Child pornography law is critically important to reducing the sexual, emotional, physical, and psychological abuse of children. Instead of taking a laundromat approach to child pornography where we create more and more dirty laundry instead of less, we need to focus on providing compassionate and mental health assistance to those attracted to kids and to those with other comorbid risk factors. We have to look at science, not our personal moralities or even what we presume is our community’s “morals” and take a more sex-education positive approach to child and family wellness. Child pornography laws are very necessary, but we don’t need to expand them to non-existent or legal images. What we need is to target the most harmful content in this order: those producing, distributing, and, then, those possessing explicit or clearly exploitative images.