A Response to Alexandra Gelber’s, “Response to “A Reluctant Rebellion,””

A Response to Alexandra Gelber’s, “Response to “A Reluctant Rebellion,””

Dr Nigel Leigh Oldfield, Researcher and Ex-offender in This Field.

The article from Mr Hansen:

http://www.abajournal.com/magazine/a_reluctant_rebellion/

The article from Ms Gelber:

http://www.ussc.gov/Education_and_Training/Annual_National_Training_Seminar/2010/009c_Reluctant_Rebellion_Response.pdf


(was:  http://www.usdoj.gov/criminal/ceos/ReluctantRebellionResponse.pdf)

The article from ‘Sentencing Law and Policy’:

http://sentencing.typepad.com/sentencing_law_and_policy/2009/07/potent-doj-response-to-aba-journal-article-about-federal-child-porn-sentencing.html

This Response

• I write in response to Mark Hansen’s article “A Reluctant Rebellion,” which appeared in the June 2009 issue of the ABA Journal.

I write in response to Ms Gelber.

• Although Mr. Hansen’s article raises questions about the child pornography sentencing guidelines, his piece speaks to a much more fundamental question about the legitimacy of the crime at issue.

These being the fundamental questions, which are continuously smoke-screened and contorted, by Misinformationists, such as Ms Gelber.

• While Mr. Hansen does not explicitly argue that the collection, trade, viewing, and possession of images depicting the sexual exploitation and abuse of children should be legal

As it happens, I believe that all publicly-available images should be open to legal collection, viewing and possession, in a free society, but that is not within my agenda, here.

Within this piece, I will expose the tools of the Misinformationists.

The first is the use of the terms ‘exploitation’ and ‘abuse’; here, is their first tool, The Use of Weasel Words.

Exploitation is an inherent part of any society. It is, merely, a person’s or a group’s perception, on the use of the services/acts of one person by another. It is not inherently harmful and is, essentially, a moral position.

Abuse means one of three things:

(1) A moral unacceptability, voiced by an individual or group,

(2) Something which is ‘proven’ to cause significant or serious harm,

(3) A smorgasbord of other post-modern/feminist possibilities.

This is why it is relished and used, so widely, by the Misinformationists, towards their gain. In this document, these meanings will be referred to as Abuse 1, Abuse 2 and Abuse 3, respectively.

• he does strongly question whether the crime should be treated as seriously as it currently is under federal law. Indeed, he writes, “Critics say the mandatory and recommended penalties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and downloading child porn online with other like-minded individuals in the presumed privacy of his own home.”

As say, I do argue that it should not be a crime. However, if one wishes to maintain this thought crime (for that is what it is), then it should be nothing more than a ‘misdemeanour’, based on moral standards of obscenity, if that is what one wishes one’s society to be based upon; personally, I do not.

• Mr. Hansen’s article perpetuates fundamental misunderstandings about the nature of the crime,

I am not sure Mr Hansen has, but I am sure that Ms Gelber does, as I will clarify, in this piece.

• the offenders, and the law. When properly understood, the substance and structure of the criminal provisions and sentences for these pernicious crimes show an appropriate response to an exploding crime problem.

When properly understood, we confirm that Ms Gelber and her associates to be Misinformationists. A bigger, important question is, “why would they”?

• The True (sic) Nature of These Images.

• The phrase “child porn,” used repeatedly by Mr. Hansen throughout his article, masks the true nature of what these images and videos portray, which is the sexual exploitation and abuse of children.

The phrase “child porn” is quite correct, in relation to the vast majority (if not all) of these images. The term pornography is best defined as “something which is created to sexually titillate (i.e. to excite pleasurably)”. This is the primary reason, why the majority (all?) of the present images were created, whether it be the legally-produced images in Denmark, in the 1970s, or the quasi-legal images, in the Ukraine, Russia and USA, over the last two decades.

Even for those ‘cottage industry’ images, historical and those being created now (e.g. the ‘M’‘,V’, ‘BS’ series, ‘sexting’ etc), it is fair to suggest that they were probably all created to sexually-titillate the creator, the participants or the recipients. Since all the images, described above, are pornographic and involve minors (children) they are all child pornography. The point is, of course, that terms are not mutually-exclusive, but, it is very useful to pretend that they are, to the Misinformationists. This is their second tool, The Smokescreen of the Image.

Of course, what Ms Gelber means, is that they are Abuse 1 images, something which she and others (presumably) find (or pretend to find) morally-objectionable and nothing more. This is because, from all my research, I have not found reference to one image that qualifies as that of an Abuse 2 image. These images are both child pornography and Abuse 1 images, for those who see them as such.

• In the 1970's and 80's, the typical sexually abusive images of children involved photos of nude children in sexual poses, what would be classified under federal law as a “lascivious exhibition of the genitals or pubic area.” 18 U.S.C. § 2256(2)(A)(v); United States v. Petrov, 747 F.2d 824, 829 (2d Cir. 1984); United States v. Weigand, 812 F.2d 1239, 1241 (9th Cir. 1987);United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986).

Although such images were represented, in those days, there were also more ‘graphic’ images, produced quite legally, in the countries of origin and possession.

It should be noted, that Ms Gelber’s term sexually abusive images of children is now the de facto term (for now).

• Over time, increasingly severe and graphic images have started to become the norm instead of the exception, depicting the violent sexual abuse of younger and younger children, including infants and toddlers.

It is true, that such images have increased in number. There has been a parallel increase in the availability of all images, thanks to the new technology. The internet is a mirror of society, it reflects what ‘we’ are, and what ‘we’ do, whether the observer likes it or not. Couple this with the increase in the availability of digital-capture technology, places us where we are today.

It should be noted, that we now have violent sexual abuse, without definition. Ms Gelber increases the Emotional Pressure (the third tool of the Misinformationists).

It is true, that younger and younger children are being imaged. There is no evidence that this is any more harmful (if at all) than those of any other age, but Ms Gelber adds it for emotional effect.

• In a recent prosecution in the Northern District of Florida, fourteen defendants were convicted for participating in a newsgroup where they traded over 400,000 sexually abusive images and videos of children, including images of toddlers and the sadistic sexual abuse of children. See, http://www.usdoj.gov/criminal/ceos/Press%20Releases~ /NDFL_SEVEN-DEFENDANTS_1-14-09.pdf.

‘Trading’ is not required in a newsgroup. The images are freely-available, for download, and legally so, in some jurisdictions. In any case, the exemplar did not involve a newsgroup; it was s P2P, file-sharing process.

• In some of these videos, the children can be heard screaming and crying in response to the physical assault. See also, United States v. Cole, 2009 WL 1443937 *1 (6th Cir. May 22, 2009) (unpublished)

Some? How many? Screaming and Crying? In what way? Pleasure, Pain, Boredom, Acting?

Unpublished? Well, how odd, one cannot really know, until one sees any transcripts, in fact, not without seeing the images and, perhaps, not even then.

I do not doubt, in a world of trillions of images and trillions of human acts, such an image will surface.

• (defendant admitted to possessing images of adult males engaged in sexual activity with infants); United States v. Pugh, 515 F.3d 1179, 1193 (11th Cir. 2008) (defendant’s collection included a video of an adult male raping an infant girl

As is known, rape is a legal term, requiring the minimal level of ‘penetration’. There is no doubt that unacceptable, partial and full penetration of infants and other minors occurs around the world. I challenge anyone to evidence such an image, at this time.

This introduces the fourth tool of the Misinformationists, The Lack of Image Transparency.

• and a picture of an adult male having sex with a toddler who wore a dog collar around her neck).

Having Sex? Again, why should a dog collar cause any more harm (if any) than that of a necklace, charm or T shirt? Selective, observation for effect, Tool 3, Emotional Pressure.

• The collection amassed by the defendant in United States v. Parmelee, 319 F.3d 583 (3d Cir. 2003) provides a good example of what is seen today. Interspersed among nude images of young girls revealing their genitalia, which are illegal in their own right, are images of: a naked, minor girl who appears to be screaming in pain

Appears?

• as she is digitally penetrated on a bed; (b) two Asian girls, one naked and kneeling with a dog collar and leash around her neck; the other standing in a see-through bodysuit holding a whip in one hand and a leash in the other; (c) a series titled “Young Bondage” depicting a naked, minor female with a metal collar around her neck that was approximately two-and-a-half inches thick and had chains coming from it connected to straps around her wrists ... a picture of a naked, minor female ... lying down and inserting a partially peeled banana into her vagina ... a picture of a naked, minor female standing and holding the neck of a bottle which has been inserted into her vagina ... a picture ... depicting a partially clothed baby having a pacifier inserted into her vagina ... photographs of: minor females blindfolded with their hands and feet tied to a table [and] a minor female sitting with her legs straight up in the air in a “V” position while holding a bottle inserted into her vagina and what appears to be either a penis or a banana inserted into her mouth. Parmelee, 319 F.3d at 586 n.3.

These theatricals can certainly be shocking to the novice. However, one then must move on and ask “where and why does this shock originate”?

• Thus, the collection, trade, and possession of such images are not illegal because of “polite society’s disgust and revulsion” with pornography, or as one judge put it, “[o]ur ‘social revulsion’ against these ‘misfits.’” United States v. Paull, 551 F.3d 516, 533 (6th Cir. 2009) (Merritt, J., dissenting). The heart of a child pornography case is not Victorian-era discomfort with sex, but the sexual exploitation of children through the ongoing mass circulation of images of their abuse.

Of course, the former rationalisation is exactly the reason for these legal responses (they are Abuse 1 images), for these ‘misfits.’” are all of ‘us’ and the novices are only beginning to accept such, as a possibility. However, one is compelled, then, to consider the ongoing mass circulation of images of their abuse. This is dealt with, later.

• As the Supreme Court noted in New York v. Ferber, 458 U.S. 747, 756-57, 58 (1982), “It is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling ... [and that] the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child” (internal quotation and citation omitted).

It is evident - Is it? A source of proof or evidence, please?

beyond the need for elaboration - well, only if one accepts statements on face value; I do not.

State’s interest in safeguarding the physical and psychological well-being of a minor is compelling - Noble, for sure.

... [and that] the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child”

- Is it? A source of proof or evidence, please?

It should be noted, that harm and not serious or significant harm is stated.

The un-evidenced, obiter dicta of judges is not the truth, as much as the legal profession et al would like to believe it is.

• The True (sic) Nature of the Harm Caused to the Victims.

• The trade of sexually abusive images of children inflicts unique harms upon its victims.

A source of proof or evidence, please? Dogma is insufficient.

• As expressed by one victim, who survived a murder attempt by her mother, and five years of sexual abuse, when she was aged 5-10, by her adopted father who shared images of that abuse (and also kept her chained in the basement and intentionally malnourished), “Usually, when a kid is hurt and the abuser goes to prison, the abuse is over. But because [the defendant] put my pictures on the Internet the abuse is still going on. Anyone can see them. People are still downloading them.

The fifth tool of the Misinformationists, The Anecdotal Report from the Favourable Actor.

This was the Testimony, submitted by Masha Allen to the House Energy and Commerce Committee Subcommittee on Oversight and Investigations. Masha is the FBI’s, victim, ‘Pin-up Girl’, in more ways than one. After her younger years of violence and being an orphan, in Russia, she was adopted by, Matthew A. Mancuso who, from court records, later ‘molested’ her and distributed images of Masha on the internet. From the publicly-published evidence, these appear to be posing images.

• ... I’m more upset about the pictures on the Internet than I am about what [the defendant] did to me physically.”

Masha is upset. She claims no harm from the acts or the images, only that she is more upset. This is a convenient anecdote, nothing more, from a young woman, homed, financed and clearly conditioned by the FBI and its associates.

There is also substantial evidence, that the FBI have used images of Masha in their sting sites; quid pro quo perhaps?

• Another child pornography victim, who was raped and bound repeatedly by a relative for 2 years starting at age 10, writes “thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them. I was so young ... It terrifies me that people enjoy viewing things like this ... Each person who has found enjoyment in these sick images needs to be brought to justice ... even though I don’t know them, they are hurting me still. They have exploited me in the most horrible way.”

This claim is un-sourced, thus, not open to critique, as we cannot confirm any veracity on anything, however, let us take it ad verbatim.

• “thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them. I was so young”

This is clearly irrational. ‘She’ is not being raped, or hurt by the images, or where they are. She is deflecting her, alleged, pain, at something which she can cling onto. She is no more being harmed, than the Iraqi child, who has been bombed or shot, when we observe that child’s image in the media, in fact, the media sell such images, how ironic.

This is the post-modern ‘damage’, created by those around ‘her’ who have failed to challenge and have, in fact, supported ‘her’ cognitive distortions, which she, supposedly, suffers from; all over an inert, historical, digital representation of something which may have occurred, in the past.

What is more, Ms Gelber et al feel able to exploit it, again and again.

• These victims’ sentiments correspond to the Supreme Court’s view on these images, as it explained more than two decades ago: The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children ... [T]he materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation ... [P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography. Ferber, 458 U.S. at 759-60 and n.10 (internal citations omitted) (emphasis added).

More, un-evidenced, obiter dicta. After nearly three decades, it appears we have less than a handful of dubious anecdotes (from the millions who have been imaged), from favourable actors; this is poor evidence, to say the least. Obiter dicta are not truth; in fact, they are often opposite to the truth, in hindsight.

• The David Grober case, mentioned by Mr. Hansen, brings the argument full circle.

Quite the opposite, we are now approaching some clarity, logic, linearity and reality.

• Among the 1500 images and 200 videos of child pornography found on the defendant’s computer were images depicting both of the victims quoted above, along with scores of other children,

This could be have been carried out, without trading, in a matter of days (hours) on a decent broadband connection, at the time.

• some who have been identified and rescued from their abusive situation and some who have not.

Correction … a tiny number have been identified, not always after the event, and the vast majority have not.

• The True (sic) Dynamic of the Crime.

• In addition to severely downplaying the content of these illegal images, and what necessarily happens in order for those images to be created, Mr. Hansen’s article also misrepresents the true dynamics of this crime,

In addition to severely up-playing and applying dubious (actually, weak or non-existent) foundations, applying logical fallacies and by using Tools 1-5 of the Misinformationists, Ms Gelber begins to misrepresent the true dynamics of this crime.

• which he describes as the “swapping” of images in the “presumed privacy” of a defendant’s own home.

This is exactly what happens in many cases (but, far from all). As most ‘sharing’ is now by P2P, the downloader may not even be present or know that the content is even illegal.

• In a similar vein, Federal Public Defender Troy Stabenow wrongly characterizes these defendants as the passive viewers of the crimes of others.

Not only are they the passive viewers of the crimes of others (a little emotional, once again [and, somewhat, incorrect], but we will go with it), the source of what they may observing, in the images, may not be a crime, at all.

Ms Gelber now wishes the reader to visualise that these images are of ‘babies, torture and bottles’ (Tools 2, 3 and 4) and they cause long-term harm (Tool 5), whereas the vast majority, are innocuous images of naked/semi-naked minors; all are not Abuse 2 images.

• As a threshold legal matter, the possession of child pornography is properly prohibited by law, even when it is in “private.” Osborne v. Ohio, 495 U.S. 103, 110-11 (1990) (affirming the constitutionality of laws prohibiting possession of child pornography).

We now move onto the sixth tool of the Misinformationists, The Law Says.

Allow me to clarify, to Ms Gelber, the hierarchy of the rational understanding, of the world around us:

The Truth

Science

The Law

Thus, as interesting as the law may be, it is not the truth; it is fluxional and may be changed on a whim. Law just justifies laws. It will not strengthen your weak or non-existent foundations, nor make your false statements true.

• More fundamentally, it is simply not possible to disconnect the collection, trade, viewing, and possession of these images from their production.

Fundamentally? It is possible to do all those things and totally disconnect from their production. I do not need to invoke the production of air, for me to breath. It is just there. Always was and always will be, as long as I am here (one hopes).

This introduces the sixth tool of the Misinformationists, Let’s Make Indirect Production, Direct Production.

• Every defendant who receives sexually abusive images of children is not acting within the four corners of his own home, but rather is a participant in what Mr. Hansen acknowledges is a global market with millions of members–a market which constantly demands that more children be abused in order to create new images.

No, he is in his own home, if he is - that is the truth.

I am a participant in air breathing … I cannot see your point, yet.

Yes, in the global market of air breathing. We all do it. Oh, I see, you think there is market of supply and demand, operating in these images, which may be restricted?

Let us look at the historical perspective.

At times, in the last three decades, there has been a commercial market in images of minors, as described before. In the mid-1970s, the USA and UK (again, under the lobbying of Misinformationists and frauds) decided that these ‘legal’ images should be made ‘illegal’. It is difficult to say, to many of us, now, why that is, but the law is the law. As has been said, these were, generally, innocuous images, and harm was never communicated or evidenced; it was an Abuse 1 image issue, a moral issue. The timing can be explained, but is not relevant here.

As we moved into the 80s and 90s, easier, international commerce and contradictory legal systems, allowed a number of websites to surface, mainly in the East. Again, these were all, generally, innocuous images, but much higher quality, in terms production etc. There is much evidence, that these models lived happier lives, well-fed and schooled. Parental presence was common.

At this time, with a commercial market operating in these images, it was not difficult to entice younger prostitutes, or the poor, to pose for images, some now involving minor, sexual acts with each other and adults. Again, this was seen as a ‘step-up ‘in life quality, by many.

The USA LEAs then went global, in the ‘war on ‘CP’, making deals with those in the East and carrying out a few token busts aboard and at home. Widespread filesharing was now surfacing.

By the early 2000s, commercial websites were declining (not that there had been many), with newsgroups at their peak and filesharing quickly catching up.

Throughout the 2000s, to date, we have seen many ‘CP’ scare stories, which are nothing more than fly-by-night, spamming hacks of forums etc. For all intents and purposes, there are no commercial ‘CP’ websites in operation. Now-and-then, some novice attempts to bend their local laws and goes a little too far and they are busted.

What about ‘babies, torture and bottle’ images’, i.e. those which are viewed as some, as being more ‘extreme’? Throughout the 80 and 90s, it was possible to set up a fleeting ‘CP’ website, reusing and regurgitating all the available images, with little risk. The images, almost totally, originated from the newsgroups, some perhaps collected, now and then, from the few websites which were operating, for short periods. Within newsgroups, and now filesharing, ‘hands-on offenders’ would leak their images into the system. Of course, there can be little doubt (knowing human nature), that small, close, covert groups were conspiring to create some of these images, but, in those years, they were extremely rare and small in size. There is no credible evidence that there were any commercial ventures.

One unintended consequence of ‘the clampdown’, is that, whereas, the number of innocuous images was large, at first, and they were easily-available, now, that type have become much less common and the majority are much more graphic and in video format. Only the novice gets caught dealing and trading in these. In fact, they may be the ‘innocent patsies’, set up for just that purpose, by the experts and the authorities.

With increased, international contact, like-minded people of all kinds have found groupings. For ‘hands-on offenders’, where in the past, their acts will have been local and unearthed, now, occasionally, a small number of people, for many reasons, decide to chance their hand; many novices are drawn in. These are the occasional busts which are now seen. These busts come at great cost, in terms of manpower and facilities, with little, real gain, and much destruction of individuals and families. Of course, little changes in the off-line world.

That is the potted history of child pornography (1970-2009)

• An ongoing international investigation succinctly makes this point. Operation Joint Hammer, and its European counterpart Operation Koala, are premised in part on the investigation of customers who accessed a website to purchase lengthy videos depicting the sexual exploitation of dozens of children from a web site. See, http://www.usdoj.gov/criminal/ceos/Press%20Releases/JOINT-HAMMER_12-12-08.pdf. The videos were made by the web site operator. This international investigation has generated leads in over 30 countries, and has led to scores of arrests in the United States so far, including child molesters and producers of child pornography. The web site operator was constantly creating new material for his customers, who kept coming back for more. Quite literally, if there had been no market for these illegal videos of child abuse, they would not have been made in the first instance.

Here is one example of such a bust. Note that Ms Gelber now applies Tool 1 (sexual exploitation). Ms Gelber has no idea if the ‘proprietor’ would or would not have made such images, these were innocuous images, involving clothed and partially-clothed young females, but a bust is good for the figures and for other wider gains. Sexual activity was, essentially, nil.

Here we introduce the seventh tool of the Misinformationists, The End Justifies the Means, Even if There are Better or More Designed Ways. i.e. led to scores of arrests in the United States so far, including child molesters and producers of child pornography

• As those investigations illustrate, child pornography collectors never innocuously download images in “private.”

They can and they do and this has been clarified.

• Rather, they are the engine of demand that fuels the molestation of children to create more supply.

Operation Joint Hammer, and its European counterpart Operation Koala, were not a molestation of children case. Ms Gelber is setting up straw men, once again. You have any more examples, Ms Gelber?

• The Supreme Court recognized this dynamic over 25 years ago when it wrote, “the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.” Ferber, 458 U.S. at 759. The Supreme Court repeated this sentiment several years later when it commented that “It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” Osborne, 495 U.S. at 109-110.

Just a pity it was incorrect, let alone the untended consequences and the fact it has been unsuccessful - in fact, quite the opposite, based on numbers and nature of the images. Note, Tool 1, is applied, once again (sexual exploitation).

• There are other insidious dynamics of this crime, discounted by Mr. Hansen: the impact of the content on the viewer, and the impact the collectors have on each other.

Well, let us see …

• In his article, Mr. Hansen quotes Mr. Stabenow, who essentially suggests that child pornography laws are wrongly concerned that the images goad the consumers to commit future crimes: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder ... That doesn’t mean that they’re going to go out and commit torture and murder.” The analogy does no hold water, principally because no one who watches Saw believes that the images of violence are actually happening, where in child pornography images, real children are actually being abused.

Ms Gelber, apparently, is able to read the minds and knows the full psychology of movie viewers and those who look at such images. As this is already a long piece, for now, I will say that Ms Gelber clearly has little or no understanding of human fantasy dynamics or the suspension of disbelief.

In any case, we will see, later, why this is an irrelevancy.

• Furthermore, what is the point of any pornography if not to stoke the fires of sexual desire.

Because sexual desire is short-lived, when quenched.

• More importantly, Congress has found that the individuals who collect these images are affected by the real abuse they portray: “child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites ...; such use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer”. Omnibus Consolidated Appropriations Act of 1997, PL 104-208, § 121 (September 30, 1996) 110 Stat. 3009-26.

1996? I see. Now, where are their sources?

• Additionally, through the internet, child pornography collectors can operate in world populated exclusively by “like-minded individuals” who tell them that it is normal to have a sexual attraction to children, and that it is acceptable to act on that attraction. This message, conveyed through the images themselves, erodes the societal mores which would otherwise inhibit them from satisfying that impulse. These images diminish the shame that someone might have felt about having an attraction to children, which lowers the barriers to indulging that attraction.

child pornography is often used by pedophiles

Really? Incredible (hardly). What is your point, Ms Gelber?

Additionally, through the internet, child pornography collectors can operate in world populated exclusively by “like-minded individuals who tell them that it is normal to have a sexual attraction to children

It is absolutely ‘normal’ for a paedophile. In fact, it is perfectly ‘normal’ for many non-paedophiles, as well.

and that it is acceptable to act on that attraction

Assertions and suggestions are not guarantees. Where is your evidence, Ms Gelber?

erodes the societal mores which would otherwise inhibit them from satisfying that impulse.

Now we have a little truth, societal mores.

These images diminish the shame that someone might have felt about having an attraction to children,

Shame, for having an attraction to children? What was the date again? 1886, 1996, ah, I see .. oh no, sorry … this is Ms Gelber, in 2009.

which lowers the barriers to indulging that attraction

Assertions and suggestions are not guarantees. Where is your evidence, Ms Gelber?

• Every defendant who provides a sexually abusive image to someone else is saying that it is OK to be exploiting children this way.

How does Ms Gelber know what they are ‘saying’ or conveying?

• When committing these crimes, each defendant necessarily enables and emboldens others, which is one more reason why this activity is properly criminalized and punished.

Enabling and emboldening others is a good thing. Of course, if Ms Gelber is conflating looking at an image with ‘hands-on offending’, then I can see her new ‘tool’.

• The True (sic) Threat of These Defendants.

• With that as a backdrop,

Is that all you have to draw upon? It is a good job, Ms Gelber, that I am avoiding contrary research and evidence, at this time.

• it becomes clear that, contrary to Mr. Hansen’s suggestion, individuals who have collected or viewed child pornography have exploited children.

That may be true, in some cases. Exploitation is not illegal and where anyone says it is, is a place full of hypocrites and those in denial.

• Put another way, the distribution, receipt, viewing, and possession of child pornography is a distinct and egregious form of child exploitation worthy of punishment in and of itself.

Abuse 1 image rationalisation. Ms Gelber et al do not like it, so we will not be allowed to do it.

• As these individuals collect these illegal images, they exploit the children in the images. As they trade them among other “like-minded individuals,” they reinforce the concept that a sexual attraction to children is normal and acceptable.

I hate to burst your bubble, Ms Gelber, but it is normal and acceptable, and many of us know it to be true - but that has little to do with trading any images.

• As they establish contacts and networks to facilitate the trade and discussion of these images, they contribute to the market demands for more product, which means more child abuse.

This has been dealt with. I see that Ms Gelber has switched back, via Tool 1, from child exploitation to child abuse.

• Nonetheless, woven throughout Mr. Hansen’s article is the theme that individuals who collect and trade child pornography are not really a threat to children or society, certainly not in the way that “actual” child molesters are.

Ms Gelber, those who collect and trade child pornography are no more a threat to children or society, than you are a threat to all society, by your looking at images of death and destruction, in the media. If those who collect and trade child pornography are what you imply, then you are a killer (potential or actual), if not a murderer - are you?

On the specific issue, of course there should be relative sentencing and, in civilised countries, such as mine, there is (even if it is still draconian, in relation to alleged, harm caused).

• It is here where critics of child pornography laws attempt to have it both ways. On the one hand, they argue that child pornography collectors are not a danger to children. On the other, as indicated in Mr. Hansen’s article, they argue that the defendants amass these images for their “personal gratification” or are “titillated” by what they see.

What is your point, Ms Gelber? They are, evidentially, not mutually-exclusive. Ms Gelber, do you know anything, of worth, about human sexuality?

• Jon Hanson, one of the defendants profiled in the article, adopted the first argument, claiming not to be a danger to children. Upon receiving images that included pictures of a seven-to-eightyear-old girl being sexually penetrated by an adult male, Mr. Hanson would write to other likeminded individuals that he “wanted to f**k one so bad,” or that he wanted to rape a young girl. Eastern District of Wisconsin, No. 07-cr-330, Sentencing Transcript, June 19, 2008, page 23 (hereinafter “Transcript”). It does not seem a difficult argument to make that there is legitimate cause for concern when someone reacts to a video of a child being sexually assaulted, not in horror, but in envy of the participants and with a desire for more material.

What is your point, Ms Gelber? Fantasy or needs are not actions, even in this singular case. I can assure you, Mr Hanson is not a rarity.

• By repeating an argument that is often made by defendants in child pornography trafficking and possession cases–that these offenders pose “little or no threat of physical harm to any children”–Mr. Hansen disregards the harm already caused children through the continued circulation and consumption of these images.

Which (and I am being polite) is a dubious claim, at best.

• Moreover, it is difficult to understand how Mr. Hansen can conclude that a child pornography collector does not, and will not, pose a physical threat to a child, especially when he himself writes that “there is no published research on the odds that viewers of child porn will actually assault a child,

He is correct, except incorrect, in the sense, that there is published work to show the opposite is the case. It appears that Mr Hanson is nearer to the truth than you are, Ms Gelber.

• and quotes a psychiatrist who says, “There’s nothing very definitive when it comes to sexual disorders, especially sexually disorders involving children.”

I would need to see the paper to comment fully, but, this is consistent with present views on human sexuality, involving minors. Do you know any of this work, Ms Gelber?

• This lack of definitive information does not stop Mr. Hansen and countless defendants from repeatedly making the self-serving argument that they are not a threat to children.

You misinterpret and distort the points Mr Hanson tries to make; that is the lawyer in you, Ms Gelber. There is published work and I have it or access to it.

• Whether or not one can predict what an individual might do, there is some statistical evidence that consumers of child pornography may also be child contact offenders. Contrary to the statements in the article, a study has been published indicating that among individuals who were convicted federally of trafficking or possessing child pornography, there was a high incidence of previously undisclosed contact offenses against children. Bourke, M.L, Hernandez, A.E. (2009). The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders. Journal of Family Violence, 24(3), 183-191.

Oh dear, a lawyer setting themselves up for a fall. I think you need to keep up with current affairs, Ms Gelber. Please allow me:

_____

“But, I caution the law enforcement community and others against generalizing beyond the offenders who were the subjects of my treatment interviews. I urge the professional and scientific community to attend to this understudied group of offenders.”

STATEMENT OF ANDRES E. HERNANDEZ DIRECTOR OF THE SEX OFFENDER TREATMENT PROGRAM FEDERAL CORRECTIONAL INSTITUTION BUTNER, NC

http://www.projectsafechildhood.gov/HernandezTestimonyCongress.pdf

_____

The Government also furnished the Court with a presently unpublished study entitled, “The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders” (“Butner Study” or “Study”). This Study set out to determine whether a group of men who had been convicted of possessing, receiving, or distributing child pornography, but who had no known history of “hands-on” sexual abuse, were “merely” collectors of child pornography or, alternatively, whether this group actually had committed “hands-on” sexual abuse. The Study concluded that the collectors of child pornography were “more likely than not to have sexually abused a child via a hands-on act” based on rather startling data. Butner Study at 2. The Study found that 85% of collectors admitted to having previously abused children and that only 2% of collectors who still denied abusing children could pass a lie detector test on that question. Id. at 18. Rogers was provided a copy of the Study and was able to comment on its merits. The Government has offered this Study, at a minimum, as an indication that recipients of child pornography are dangerous individuals and, possibly, to suggest that Defendant has committed a sexual assault against a child in the past.3 See Pl.’s Sentencing Mem. at 22. The Court will elaborate on this Study and the weight the Court assigns to it in discussion to follow.

3 While the Government never explicitly argued that Defendant has personally sexually assaulted a child, the Government seems to implicitly take this position, arguing its brief: “[The Butner Study] shows that the Defendant is statistically more likely than not to have actually committed an act of child sexual abuse. . . . [T]he study suggests that the Court should not give any substantial weight to the fact that the Defendant has not been discovered to have committed a hands-on child sex offense.” Pl.’s Sentencing Mem. at 22.

C. Consideration of the Butner Study

The Government offers the Butner Study to demonstrate that Defendant is a threat to the public. However, the Government also offers the Study to show that “defendant is statistically more likely than not to have actually committed [a past] act of [“hands-on”] child abuse.” Pl.’s Sentencing Mem. at 22. The inference that the Government asks the Court to draw is distasteful and prohibited by law. Uncharged criminal conduct may generally only be considered in sentencing if proved by a preponderance of the evidence. See United States v. Howe, 538 F.3d 842, 855 (8th Cir. 2008); see also United States v. Tyndall, 521 F.3d 877, 882 (8th Cir. 2008). Moreover, the Government bears the burden of proof. United States v. Azure, 536 F.3d 922, 933 (8th Cir. 2008). The Butner Study, even if credible, falls far short of this standard because it fails to demonstrate whether Defendant has, personally, previously assaulted a child sexually. At most, the Study reveals that a majority of other individuals with a similar criminal history committed crimes against children, but the Court cannot see how evidence of those individuals’ crimes establishes by a preponderance of the evidence that Defendant committed a prior sexual crime. This conclusion is only bolstered by the fact that the Government failed to present any physical evidence that Defendant sexually assaulted anyone, let alone a child. The Government produced no witnesses, no victims, no forensic evidence, no confession, and no other sign that any previous improper sexual activity occurred. Indeed, the Government agreed with the PSR’s Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 14 of 18 7 The Court will note that the Butner Study is not exactly on point because it never delves into the risk of recidivism of sexual offenders. The Study merely investigates whether current sexual offenders have committed other, undisclosed sexual crimes. The Court will, however, accept the proposition that those who have physically harmed children are more dangerous to the community than individuals who only collect child pornography. Thus, the Study is indirectly relevant in determining the dangerousness of an individual like Defendant. -15- calculation of Defendant’s criminal history, which does not include any references to prior sexual crimes. Therefore, this Court will not accept the implicit invitation to use the Butner Study to hold Defendant accountable for a phantom crime unsupported by any evidence. The Court also rejects the Government’s attempt to use the Butner Study to demonstrate that Defendant is a danger to the community. The Government argues that Defendant is dangerous because the Study indicates other individuals charged with similar crimes have committed “hands-on” sexual abuse of children.7 The Court rejects this proposition because the Butner Study is not credible. The Butner Study’s sample population consisted of incarcerated individuals participating in a sexual offender treatment program at a federal correctional institution. Tr. at 29. As Rogers testified, the program is “highly coercive.” Id. Unless offenders continue to admit to further sexual crimes, whether or not they actually committed those crimes, the offenders are discharged from the program. Id. Consequently, the subjects in this Study had an incentive to lie, despite the fact that participation in the program would not shorten their sentences. Rogers testified that the Study’s “whole approach” is rejected by the treatment and scientific community. Id. Complicating this bias is the fact that the Butner Study did not report on the nearly 23% (46/201) of individuals in the treatment program who left due to “voluntary withdrawal, expulsion, or death.” Butner Study at 10. As a result, the offender population and the Study’s results were almost certainly skewed. Tr. at 30. Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 15 of 18 8 Peer review is also a key factor that the courts consider when deciding whether to allow scientific testimony into evidence under Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 593-94 (1993). Although the Federal Rules of Evidence do not technically apply at sentencing, the Court does note that this Study would likely fail to meet the Daubert standard. -16- The Butner Study also suffers from additional methodological flaws. First, the subjects of the Study were not randomly selected from those who only collect child pornography, which indicates that even setting aside the incentive to lie, the sample population may not be representative of the larger population that collects child pornography. Id. at 33. Second, the Study employed an unpublished questionnaire. Id. at 37. This prevents other independent researchers from verifying whether the questionnaire is reliable and capable of producing results that are accurate and meaningful. Id. at 38. Third, the Study relies, in part, on the results from polygraph examinations, which is highly problematic given the unreliability of such tests, especially since “no standard for training polygraph experts” exists. Id. at 34. Fourth, the Study is not peer reviewed, which is the norm in science.8 Id. at 30. According to Rogers, the peer review process would likely be “pretty uncomfortable” for the researchers because the data and statistics in the Study do not fit the researchers’ conclusions. Id. Finally, the Study also appears to suffer from flaws relating to its control group and independent variable, or lack thereof. Id. At 31-34. Instead of producing an expert to explain the apparent weaknesses in the Butner Study, the Government preferred to attack Rogers’ critique. The Government first brought out the fact that Rogers had not seen the questionnaire and had no knowledge of the 155 inmates, arguing that Rogers had “no factual basis to dispute” the methodology or conclusions of the Study. Id. At 38-41, 51. The Government also tacitly encouraged the Court to look beyond any flaws in the Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 16 of 18 9 The Court finds these results highly questionable given the extraordinarily high percentages, as well as the fact that the researchers saw a 2,369% increase “in the number of contact sexual offenses acknowledged by the treatment participants” during the course of the Study. Butner Study at 17. These astronomical figures lead the Court to question whether this unvetted prison Study, conducted by the former chief of the federal sexual offender treatment program and distributed by the Department of Justice to prosecutors, is, in actuality, a product of the tremendous “political pressure applied” to researchers in this research field. Tr. at 7, 45. 10 The Court believes that the adversarial process is the best means for ferreting out the truth, and without another expert to challenge Rogers, any weaknesses in his testimony may not be revealed. Thus, the Court hesitates to simply accept his testimony. -17- Study because it was “exploratory,” a “first step” that the authors believe to be the “tip of the iceberg.” Id. at 51. The Court, however, finds neither of these argument persuasive. The Court agrees with Rogers’ testimony that it was the duty of the researchers to be transparent and to fully incorporate their methodology and conclusions into the Study so that other independent researchers could verify the reliability of the Study. Id. at 42. By failing to disclose this information, the researchers failed to meet the “standard in scientific research” and failed to produce a study upon which the Court can rely. Id. The Court will not accept “science” conducted in secret. Second, the Court will not look past the shortcomings of this Study merely because the Study is unique or new. Indeed, the fact that the Study is revolutionary in nature gives this Court great pause for concern, especially since it produced the sensational result that somewhere between 85% and 98% of child pornography collectors have personally molested children.9 In sum, the Court will not consider the results of the Butner Study unless and until either the Government or the researchers provide transparency for its methodology and a compelling explanation for its many apparent failings. While the Court is loathe to simply agree with a mostly unchallenged expert,10 the Court can find no error in Rogers’ conclusion that the Butner Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 17 of 18 -18- Study “isn’t scientifically vetted, doesn’t meet scientific standards for research, and is based upon, frankly, an incoherent design for a study.” Id. at 33.

UNITED STATES OF AMERICA, **

4:07-cr-00127

Plaintiff, *

*

v. **

MICHAEL PAUL JOHNSON, * SENTENCING MEMORANDUM

* OPINION AND ORDER

Defendant. *

http://sentencing.typepad.com/files/johnson-cp-sentencing-decision.pdf

The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders

Michael L. Bourke and Andres E. Hernandez

http://www.springerlink.com/content/c313832g17rt2850/

_____

… because the Butner Study is not credible.

• Moreover, on May 30, 2009, the G8 Ministers of Justice and Home Affairs issued a declaration on “The Risk to Children Posed by Child Pornography Offenders.” See, http://www.governo.it/GovernoInforma/ Dossier/G8_interno_giustizia/pedo_pornography.pdf. In this declaration, the Ministers take note of the findings of an international group of experts who participated in a symposium in April 2009 to develop consensus on the risks to children associated with child pornography. Among the points of consensus was the conclusion that “there is sufficient evidence of a relationship between possession of child pornography and the commission of contact offenses against children to make this a cause of acute concern.”

Having read the ‘report’, from this talking shop, I was going to make a comment, on how the UK representatives were the ‘government-approved’, usual suspects. However, when I saw who was one of the leaders, for the section, above, I decided I need not bother; it was Dr Andres E. Hernandez, himself.

Here is the full version of the document ‘pedo_pornography.pdf’, for completeness.

 _____

Ministers’ Declaration

The Risk to Children Posed by Child Pornography Offenders

G‐8 Justice and Home Affairs Ministers

(Rome 30th May, 2009)

Two years ago, we gathered in Munich, Germany, and pledged our collective efforts to enforce the international fight against child pornography. In light of what we learned about this growing threat to children everywhere, we undertook two specific commitments:

1) to ensure the implementation and effectiveness of our own laws relating to child pornography, and to taking steps to update and improve those laws when necessary and where appropriate, and

2) to highlight the importance of the fight against child pornography in international dialogue and to encourage cooperation both within and outside the G8.

Despite our common will to the contrary, there remains an incomplete understanding of the harm child pornography presents. Thus, i some countries, effective legislation has not yet been adopted.

Last year, we welcomed the decision under the G8 Presidency of Japan to reiterate our strong condemnation and denunciation of all forms of sexual exploitation of children and renewed our pledge to continue with the fight against the sexual exploitation of children, noting in particular the alarming flood of child pornography which are images of sexual abuse of children of children on the Internet. While we recognize that all forms of child sexual exploitation require our concerted efforts, we also acknowledge

that exploitation through child pornography raises new concerns and challenges, as well as poses new risks to children, particularly as a result of the use of new technologies, such as the Internet, to commit these offences.

We are pleased to report today on an important step to address this gap. Last month, at the University of North Carolina at Chapel Hill, in the United States, experts from around the world met at a G8sponsored symposium to discuss and assess the risk to children posed by child pornography offenders.

Psychologists, medical doctors, criminologists, professors, sociologists, and computer scientists, among others, from G8 and non G8 countries met to share the findings from their research and develop consensus on the risks to children associated with child pornography.

The work of this body will be published and, we hope, disseminated worldwide in due course. Today we express our appreciation to all the participating experts and take note of their findings, which are included in the final report of the symposium attached to this Declaration.

The results of this Symposium help make clear the immediate need for effective and comprehensive action against child pornography in every country. They have inspired us today to pledge our renewed efforts to fulfill the commitments we made in Munich guided by these findings. We

request that the Roma/Lyon Group consider what additional future work may be appropriate in light of these results, and report back to Justice and

Home Affairs Ministers in 2010.

http://www.governo.it/GovernoInforma/Dossier/G8_interno_giustizia/pedo_pornography.pdf

_____

The report is available, here:

Report to LEPSG on the “Global Symposium for Examining the Relationship Between Online and Offline Offenses and Preventing the Sexual Exploitation of Children”

http://www.governo.it/GovernoInforma/Dossier/G8_interno_giustizia/LEPSG_Child_Exploitation_Symposium.pdf

_____

• Setting aside whether there is a causal connection or even a correlation between child pornography and child molestation,

I think it best that you do, Ms Gelber.

• those who collect child pornography exploit and victimize the children in those images, and create a demand for the production of more child pornography, regardless of whether they have ever personally molested a child.

Exploitation has been covered. A collector does not victimise anyone, for the reasons which have been given. There are no named victims, in such cases. This is the other reason why it is a victimless crime (the first, being, that no harm is caused).

• To further bolster their claim that they are not dangerous, and therefore should not be punished harshly, defendants often cite to their purported lack of criminal history. (Of course, a defendant’s lack of criminal history is already accounted for in the sentencing guidelines, and thus is not a proper basis for reducing the recommended sentencing level. United States v. McCart, 377 F.3d 874, 877 (8th Cir. 2004)). Often, the lack of a criminal history hides years of systemic criminal behavior.

Often? How often? Do you believe, what you imply, is only restricted to those who ‘collect CP’? Of course it is not.

• The defendants simply had never been caught–the anonymous nature of internet-based crimes and the silent and secret nature of sex crimes in general (particularly with a vulnerable population such as children) protect defendants from detection by law enforcement whether they are collectors or molesters.

See above.

• The very case highlighted in the article proves this point: according to the article, Jon Hanson had been violating the law by collecting sexually abusive images of children for “several years.”

Well, if one is going to, one will. What has timescale got to do with the issue? It is dependent on many variables.

• He may have been “an otherwise law abiding father of three,” but when it came to the child pornography laws that he was willing to break, he did so persistently, consistently, and with unwavering dedication. Notably, his effort to rehabilitate himself came only after his arrest.

Yes, it can be great fun, what is your point, Ms Gelber?

• Moreover, you can talk to any prosecutor or investigator in this area and they will tell you in no no uncertain terms that with frightening frequency, investigations of offenders for possession, receipt or distribution offences ultimately uncover evidence that the offender was also abusing children. The first victim quoted above was rescued only when law enforcement conducted a search of her abuser’s home looking for evidence of the collection and trade of child pornography; no one had any idea that she was being molested as well.

frightening frequency? How frightening? What frequency?

I thought you were going to drop this issue, Ms Gelber?

It would not matter, if 100% (and it is less than this, probably approaching an order of magnitude, lower) of ‘collectors’ had ‘molested minors’ (let us face the truth, most of us have, at one age or another), nor would it be surprising, in these days, if a high proportion of ‘molesters’ had ‘CP’. Compare to the readership of ‘Guns and Ammo’.

This does not mean it is a causal relationship.

• The “otherwise law biding” citizens I’m talking about here include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.

Have you any thoughts on why this is such a universal offence, Ms Gelber?

• Make no mistake. Child pornography defendants can sometimes appear outwardly to be upstanding citizens and members of their community; the defendants selected for discussion in Mr. Hansen’s article are certainly presented in that light. Unlike gang members, drug runners, alien smugglers, and illegal gun dealers, these defendants typically do not make their living through the violation of the law. It can be difficult to understand how someone who has so much to lose would be involved in something so debased as the trade of child pornography.

That is because they are; it is only people like you, Ms Gelber, who destroy that, in the present and the future; you and associates are actually the destroyers of families, and individual lives, including those of minors.

• It can be difficult to understand

There’s the rub, Ms Gelber.

• Child pornography defendants can sometimes appear outwardly to be upstanding citizens and members of their community; These defendants may not present as criminals, but they are criminals nonetheless.

Only when found guilty under a faulty and ill-founded law, of course.

• That their fall from grace may have been more dramatic than other criminals does not mitigate the seriousness of the crime.

That the crime should not be viewed as serious escapes you, I guess (even now), Ms Gelber. Remove the crime; remove the actual damage you and yours create.

• Comparing child pornography defendants to white collar defendants highlights this point. The Bernie Madoffs of the world are married, have children, have no criminal history, and outwardly appear to be pillars of their community, yet the devastating nature and scope of their criminal conduct remains in sharp focus. In child pornography cases, however, there is a distressing tendency to place greater emphasis on a defendant’s outer appearance of normalcy than on his criminal conduct, which can lead to an under-estimation of their danger and an over-estimation of their capacity for rehabilitation.

This is because there is no ‘serious crime’, because there is no serious or significant harm (if any harm at all). This is a moral and vicious, judicial response to an, evidentially, harmless activity and thought crime; just a fashion, which will pass, with so many good people lost in its wake.

As for Madoff, Caveat Emptor; He should spend a couple of years, in prison, and then be released, with some restriction on business dealings.

• For example, in the David Grober case, the district court wrote “For this middle-class, white collar professional, educated, suburban husband and father, the thought of one day in prison is horrifying, particularly given the offense of conviction. Any prison sentence, let alone the mandatory minimum of five years, accomplishes specific and general deterrence.” United States v. Grober, 595 F.Supp.2d 382, 409 (D.N.J. 2008). In fact, the prospect of five years in prison was not adequate to prevent the defendant from committing his crimes in the first place. The Court’s conclusion that one day in prison would be adequate to keep that citizen from committing a child pornography crime was belied by the very facts before it. The district court also suggests that the shame and humiliation of getting caught is punishment enough. Id. at 404, 409. It is worth wondering why such arguments are accepted for defendants like Grober but not for defendants like Madoff.

That is because you are the USA and, to you, losing money is worse than any crime. I make no distinction, based on class. It is abhorrent, in a free country, that anyone should be prosecuted for looking at a picture.

• The True (sic) Conduct Punished by the Child Pornography Laws and Sentencing Guidelines.

• If the argument that individuals who distribute, receive, view, and possess child pornography do not pose a physical threat to children is one side of the coin,

Which they, evidentially, do not

• the other side of the coin is the suggestion, made throughout Mr. Hansen’s article, that the child pornography trafficking and possession laws and guidelines serve as mere proxies used to punish child molestation.

Yes, they are the deflection and denial of the impotent. Prosecuting the easy target, who does no harm, to placate the ignorant and protect the moral psyches of those who do serious harm (conveniently lining their pockets, too); the latter is you and yours, Ms Gelber.

• For example, he writes, “The guidelines are predicated on the untested assumption that anyone who would access and view child porn is a potential child molester.” He also includes a comment by Mr. Stabenow that “the child porn guidelines, in effect, punish for presumed future behavior.” Factually and legally baseless, both arguments are made by defendants seeking to escape punishment for their crime.

I could comment on this, but is much easier to say … see above.

• Together, the suggestion that these defendants are not dangerous and that the guidelines simply seek to reach past or future molestation sets up a false syllogism: the child pornography guidelines really punish the molestation of children; there is no evidence that this defendant has molested children; there is no evidence that his collection of child pornography will cause him to molest children in the future; therefore, he should not be punished.

Now you are getting there; also, that no harm is caused, whatsoever, by the defendant.

• This argument fails for no other reason than the fact that the child pornography laws are not premised on the assumption that all collectors are also abusers.

How do you know what the real premise was, Ms Gelber?

• The child pornography laws were not designed to serve as a method of catching child rapists by other means, although they may sometimes function that way.

How do you know this, Ms Gelber? Is this your opinion?

• Rather, as already explained, they prohibit the exploitation of children through the collection of the images, a distinct and deplorable form of child abuse that inflicts specific harms upon its victims.

Which is does not; an odd premise to base a law upon. Are you sure this was the origin, or it is what you have been led to believe, or told to say, or have to say, or what you have created in your own mind?

• Thus, whether or not Jon Hanson had ever “done anything inappropriate around a child during his entire life,” he nonetheless spent years exploiting children through the collection of images of their abuse.

Abuse 1 image rationalisation and Tool 1. Yes, it appears that he did collect images.

• Further, as is discussed in more detail below, there is only one sentencing enhancement in the child pornography trafficking guideline which increases a defendant’s sentence for based on his molestation of a child, and it applies, not in cases where there is a prediction of future dangerousness, but in cases where there is a demonstrated pattern of child exploitation.

I am not too interested in discussing laws or guidelines, in another jurisdiction, which are based on morality and misinformation.

• Although it serves a defendant’s goal of seeking to avoid punishment for his crime, any suggestion that the unspoken goal of child pornography laws is merely to accomplish preventative detention of molesters is simply not based in fact.

Are you so naive, Ms Gelber, that you cannot see that this was a very likely, original objective and is now an operational protocol? Some would argue that such easy access to any accused’s computer, allowed a much wider and worrying set of objectives.

• To the contrary, neither Congress nor the Supreme Court has ever suggested that the child pornography trafficking and possession laws are premised exclusively on the idea that all consumers of these illegal images are or will be contact offenders.

As we have seen, those two bodies say a lot of things, which may be disregarded. We may only presume that the converse is true.

• The legislative history pertaining to the passage of the original child pornography trafficking laws in the late 1970s indicates that the “legislation [is] designed to eliminate the exploitation of children in pornographic materials ... [and to] increase the deterrent effect of current federal statutes dealing with the sale and distribution of such materials through interstate or foreign commerce.” S. Rep. No. 95-438 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 41, 55. The Supreme Court later noted the most efficient method of combating the production of child pornography was to penalize its distribution and possession. Ferber, 458 U.S. at 760; Osborne, 495 U.S. at 109-110. Thus, the child pornography trafficking laws were conceived, not as a method to punish contact offenders, but one to stop the abuse of children by others by eliminating the market for such images.

Yes,

to stop the abuse of children by others by eliminating the market for such images, because their production was perceived as causing serious or significant harm to the actors. If they really meant the supposed harm to those in the images, they made a major error and the law requires redrafting.

A court need not say something, for one to see what their reasons were.

• Child Pornography Sentences Are Appropriate.

• Mr. Hansen’s primary argument against the severity of federal child pornography laws is essentially premised on parity, as he repeatedly references criticism that the guidelines “treat first-time offenders with no history of abusing or exploiting children as seriously as murders, rapists, or child molesters ... You can get a lower score for killing somebody than for downloading child porn ... Most people would be hard pressed to explain why a child porn offender deserves to be punished more severely than somebody who uses the Internet to try to entice a child into having sex.”

I could not put it better myself.

• When attempting to draw comparisons between murder, rape, child molestation or enticement, and trafficking and possessing child pornography, it is important to have the proper context.

I hope you are finding it, Ms Gelber.

• Nowhere in his article does Mr. Hansen state what the sentences actually are under federal law for murder, rape, and child molestation. Without that information, no true comparisons can be drawn.

Ask Mr Thomas Reedy.

I really do not wish to get into your archaic Federal/State law issues. That a person can be dealt with, differently, for being 1cm over a State line, or that the government prosecuting can lead to a different outcome to that of the State - absolute madness.

• Looking at the statutory punishments and sentencing recommendations under the Sentencing Guidelines, Mr. Hansen’s argument falls apart. With few exceptions, the statutory penalties and minimum recommended sentences for murder, rape, child molestation, and child enticement are higher than those for child pornography trafficking and possession for first time offenders.

I will take your word for it (I know I should not).

Snip figures.

Snip related discussion; interesting, but not relevant to my piece.

• If anything, the fact that many of the enhancements tend to apply in most cases–meaning that most offenders amass collections in excess of 600 images which depict the sexual abuse of children under the age of 12 and the sadistic or masochistic abuse of children–simply underscores the fact that this crime problem has steadily increased in severity, which necessitates meaningful sentences that have the deterrent value to shut down the market for this abuse.

You will never shut down a ‘market’, which is so important, to so many people. Sexuality does not respond to deterrence, to any useful extent. The fact that this ‘deterrent’ is also based on foundations of sand, make it doubly-futile.

• sadistic or masochistic abuse of children -

In most cases, a mythical interpretation of a rare, essentially innocuous, image.

• A Growing, and Misunderstood, Crime Problem.

• At the end of the day, Mr. Hansen’s article advances no credible argument for why current child pornography sentences “far exceed” the nature of the crime.

Allow me to clarify, then. ‘Collecting’ such images causes no significant or serious harm (If any harm, at all), other than to the defendant and their family etc. Because of the scale of such collection and viewing, globally, and the parallel reduction in actual, sexual offending, in many countries of note, it is more than a reasonable proposition, that the availability of such images (probably through their cathartic effect) has been a positive development; clearly the judicial response has not been. In regards to the relative and draconian severity of your sentencing, it stems, primarily, from your consecutive sentencing; this must stop. You may continue to carry out a bust, now-and-then, further overflowing your prisons and registers, destroying the lives of individuals and their families and creating further crimes of anger or necessity. I could go on.

Snip some figures.

• Mr. Hansen notes that the sentence for child pornography defendants increased by 350% over the 10 years from 1997-2007, from less than 21 months to more than 91 months. That the average sentence has risen does not mean that the average sentence is now too high.

So much for deterrence.

• The context is critical. At the same time that the average child pornography sentence was rising, so was the extent of the crime, both in terms of frequency and severity. As Mr. Hansen notes, as the average child pornography sentences has risen, so to has the rate of child pornography prosecutions, from a few dozen a year in the late 90's to well over 2000 per year in the last few years.

So much for deterrence.

• Mr. Hansen fails to draw the meaningful conclusion from those pieces of statistical information:

I guess we are about to be told what is ‘meaningful’ by Ms Gelber.

• as the crime is treated more seriously by the law, it still is not taken seriously by the defendants who are “surprised” when they are prosecuted under these laws.

Like you would not believe, Ms Gelber. It all seems over-the-top, for looking at a picture, in your own home.

• Even with the punishments available now, Mr. Hansen’s article indicates that defendants “have no idea that it’s a crime, let alone a federal crime punishable by five or ten or twenty years in prison.”

Why would they, looking at picture, from their computer, in their own home?

For it to be illegal, at all, is madness.

• Even Mr. Stabenow admits that child pornography defense is a “growth industry.”

It is not an ‘industry. Like many things, arising from the new technologies, it is the glorious awakening of millions of people, realising, admitting and accepting their true selves; in this case, it is one of sexuality.

• It is astonishing that as the crime problem is actually worsening there can be talk that it should be treated less seriously under criminal law, or that critics could suggest that Congressional efforts to address this problem is little more than a “sex panic.”

That is because you and yours have failed, and always will, in this area, in a free society. There are just too many interested parties. You and yours did not realise that and now you are panicking.

• At its heart, the current criticism of child pornography sentences is not really about the degree of the sentence imposed on these defendants,

Really? Have you asked a defendant, recently, or spoken to someone on the register?

• but rather whether the distribution, receipt, viewing, and possession of child pornography–activity which the Supreme Court recognized in Ferber as being “intrinsically related to the sexual abuse of children”– should be viewed as a crime at all.

I have made my views clear on that issue.

• 458 U.S. at 759. Courts have imposed below guideline sentences in distribution, receipt, or possession cases almost exclusively where there is no evidence that defendants engaged in any form of child exploitation other than through the collection of images, that is, in cases where defendants distributed, received, viewed, or possessed child pornography but had not enticed or molested a child. Salvatore Graci, a former elementary school teacher who subscribed to child pornography websites, was sentenced on June 30, 2009, in the Eastern District of Pennsylvania to one day in prison because, according to the court, there was no evidence presented that the defendant ever acted in a predatory way towards minors. See also, Shipley, 560 F.Supp.2d at 741, 44-45, Grober, 595 F.Supp.2d at 384-86, United States v. Szymanski, 2009 WL 1212252 *3 (N.D.OH 2009), United States v. Beiermann, 599 F.Supp.2d 1087, 1091-93 (N.D.IA 2009), United States v. Smith, 275 Fed.Appx. 184, 184-86 (4th Cir. 2008) (unpublished), United States v. Rowan, 530 F.3d 379, 380 (5th Cir. 2008), United States v. Duhon, 541 F.3d 391, 394-95 (5th Cir. 2008), United States v. Weller, 2009 WL 1349779 *1-2 (6th Cir. 2009), United States v. Prisel, 316 Fed.Appx. 377, 378-79 (6th Cir. 2008) (unpublished), United States v. Autery, 555 F.3d 864, 867-68 (9th Cir. 2009), United States v. Huckins, 529 F.3d 1312, 1314-15 (10th Cir. 2008).

Noted.

• In contrast, in cases where the defendants both collected child pornography images and molested children, little to no criticism is heard that the child pornography guidelines are an excessive reaction caused by simple revulsion.

That is because something which may cause serious or significant harm (i.e. the molestation) overrides that which does not (i.e. the images) - as well it should.

• The conclusion to be drawn from these cases is clear: when a court expresses concern about the purported empirical basis of the child pornography trafficking guideline, the question actually being asked centers on the legitimacy of the crime in the first instance.

Really? That is good to hear.

• This hidden truth becomes most obvious in cases where the courts impose the lowest possible sentence (a probation sentence in a possession case or a five year sentence in a receipt or distribution case). A disagreement with the guidelines at the margins is one thing, but a wholesale disregard for every and all recommended aggravating factors is quite another. Courts which resolve their “disagreement” with the substance or basis of the guidelines by ignoring their content completely are not asking when “enough is enough,” but rather, are revealing a fundamental disagreement with the crime or a lack of understanding of these defendants.

Good.

• The problem, then, is not really with the guidelines, but with the our understanding and appreciation of the true nature of the crime and the harm caused by these defendants.

Which is zero. I hope you can see where the actual problem is - it is with you and yours, Ms Gelber.

• It appears that it is easy to understand traditional child exploitation where the defendant and the victim are face to face, but harder to understand the severity of the crime when a computer stands between the defendant and victim.

That is because something which may cause serious or significant harm (i.e. the molestation) overrides that which does not (i.e. the images) - as well it should.

• There is no other way to explain results such as those in the Graci case, where a court concluded that a one-day sentence is appropriate in a child pornography case involving a teacher who held a position of trust over young children. When it comes to the sexual exploitation of children, is the best response really to slap the defendants on the wrist and to tell them not to do it again? If nothing else, what deterrent value could such a sentence possibly have on the individuals out there still participating in this form of child exploitation?

It seems to me, that the explanation is, that you have, at least, one rational, informed and humane judge in the USA.

• The implication ultimately made by the cases where the courts wholly disregard or sharply discount the severity of child pornography trafficking offenses and sentences, as well as Mr. Hansen’s and Mr. Stabenow’s arguments, is that the federal government should use the child pornography laws only against known child sex offenders. We simply cannot accept any argument that child pornography trafficking prosecutions are only legitimate in cases involving defendants who have also engaged in other forms of child sexual exploitation. If nothing else, that approach would effectively legalize the collection, receipt, and trade of child pornography except in the most egregious circumstances.

Indeed, you should abolish the ‘CP Laws’, completely. So should we.

• Such a result would be catastrophic for children and for our efforts to protect them.

Really? Where is your evidence or precedent? You have presented nothing of worth, here.

• Imagine a scenario where the production of cocaine was illegal, but its transportation, sale, receipt, and possession were legal. The legalization of the trade of these drugs would effectively remove the barriers to the circulation of this contraband. From a law enforcement perspective, the only way to combat the crime would be to target the producers, but there would be no method of stopping the transporters and consumers who facilitate the spread of the contraband and keep demanding more.

Your analogy is flawed. Imagine an image of a bag of cocaine.

We are not speaking of prostitution or rape, etc, which have more than enough laws for you to tackle them and keep busy. You are correct; you should be targeting the ‘producers’. This is, of course, one ‘positive’ outcome, of the ‘proliferation’ of ‘CP’ - you are doing so. Legalise it and you will catch many more, if you really want to.

There is just as much likelihood, that legalisation would lead to a less, crime-ridden and ‘happier’ society (just as it was in 60s and 70s, before these laws) and, by that, I mean less serious or significant harm, to others.

• The only viable approach is the one recognized by the Supreme Court in Ferber and Osborne, that is, that “the most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties” on all activity along the entire distribution chain, from producer to possessor, whether or not those possessors are contact offenders as well. Ferber, 458 U.S. at 760; Osborne, 495 U.S. at 109-110. We cannot combat the sexual exploitation of children if the possessors, the viewers, the receivers, and the distributors are not held accountable for their contribution to the problem.

The only viable approach?

As for the Supreme Court? Merely empty rhetoric, now shown to be a useless underestimation.

Of course, that may never have been their aim at all.

• A Victim’s Mother Speaks.

• The Supreme Court has noted that “child pornography harms and debases the most defenceless of our citizens.

You like the Supreme Court, do you not, Ms Gelber? Of course, they were incorrect, in their rhetoric.

• Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet.

… and at what terrible cost?

• ” United States v. Williams, 128 S.Ct. 1830, 1846 (2008). Mr. Hansen’s article essentially asks whether those the laws meant to suppress this crime are truly legitimate. I will let the mother of a child pornography victim, whose images are now circulating the world on the internet, have the final word on that question:

Nothing like exploiting a mum, is there, Ms Gelber? Always leave a good dollop of Tool 3 until the end.

• [M]y daughter was abused repeatedly to produce images for the purpose of being traded [and] shared over the internet. Without a market to receive and trade those images,

Is that what she was told, Ms Gelber?

• without the encouragement of those who wanted to acquire the images, I truly believe this abuse would not have occurred.

People believe many things; look at your Supreme Court, for example.

• All those who trade these images and thereby create the demand for lurid and violent depictions of children are participants in the exploitation of my daughter.

Possibly, but rarely.

• Each traded picture that placed a value on inventiveness, novelty, or cruelty played a role in egging on the abuser to even more vile acts. The pictures of my daughter were ‘made for trade’ - her abuser adapted to serve his market - whatever his audience was looking to acquire, that’s what happened to her ...

It does happen, rarely, but it does happen.

• Producer, distributor, and consumer- everyone who participates in this evil exchange helps create a market, casting a vote for the next abuse.

Possibly for her case, but not widely. Inchoate law is available, for such cases.

• Regardless of whether they directly abused children themselves, reveled in the images of suffering, or persuaded others to abuse children on their behalf (to provide images of the abuse) each participant has a responsibility for the effects...

Did you explain the concept of degrees of separation and responsibility to her, Ms Gelber? Or have you let her stew?

• [As for my daughter,] a shadow ... comes over her face if a stranger gives her an unexpected compliment. The pictures are still out there ...Now that she’s growing older and realizing the extent of the internet, she’s also beginning to grasp the darker side of the story - how many people see those same pictures as something to enjoy rather than abhor.

No evidence to show that the images have caused any harm. The issues of cognitive distortions and support/conditioning have been dealt with, in the earlier cases.

• We have no way of knowing how many pedophiles used the pictures of her being tortured and degraded as an opportunity for personal gratification ...

None, one or ten million, what is the real difference?

• I struggle with anger at the unbounded nature of this continuing exploitation and the arrogant callousness of those who perpetuate it.

I am not surprised, given how much the poor woman will have been conditioned.

• If I had my way, each and every image of my daughter’s sufferings would be burned. Then she would no longer have to worry about those images being used to further hurt or humiliate her. But as it is, there are those who have no shred of decency, and continue to copy and pass on these pictures ...

She need not ‘worry’ at all.

• I can find no words to express the fury I feel at those who participate in this evil, or my scorn for any attempt to minimize responsibility by feeble claims that the crime was ‘victimless.’ My daughter is a real person. She was horribly victimized to provide this source of ‘entertainment.”

There was, allegedly, an unacceptable crime, but that was little to do with images and nothing to do with ‘collection’.

• She is exploited anew each and every time an image of her suffering is copied, trade, or sold. While the crime is clearly conscienceless, it is hardly ‘victimless.’

Irrational, un-evidenced, rhetoric. Name her or there is no credible victim. Of course, what mum says is true, for each and every image in circulation. We may all claim ‘worry’ at that, if it serves our purposes. Worry is not harm.

• I asked my daughter what she most wanted to ask of the judge. Her request: ‘Please, don’t let them pretend no-one’s getting hurt.’

FBI textbook.

I do not wish to comment much on Ms Gelber. She is a successful, governmental, lawyer, following the corporate line - how could she do much else? Her figures are useful and interesting, but the remainder, is the tired, old, rhetoric, dubious claims, ineffectual strategies and misinformation, utilising all the tools of her trade This is nicely-topped off, with a populist cry for further and more draconian, judicial responses - when will they learn?

Dr Nigel Leigh Oldfield

9th July, 2009-2013

I reserve copyright on this article and the right to alter it, at any time. I welcome any feedback or communications.