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July 6, 2009

Potent DOJ response to ABA Journal article about federal child porn sentencing

As noted in this post last month, the June issue of the ABA Journal includes this long article on the debate over federal child porn sentencing titled, "A Reluctant Rebellion."  I just learned about this extended response to the article coming from Alexandra Gelber, the Assistant Deputy Chief of Child Exploitation and Obscenity Section of the Criminal Division of the US Department of Justice. Here is how the extended response starts:

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

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

Some related federal child porn prosecution and sentencing posts:

July 6, 2009 at 10:11 AM | Permalink

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Comments

Yeah, right. There are thousands of well qualified lawyers, judges, and psychologists who have looked at this issue and have all come to the same conclusion. Yet, we "just don't get it." I can't help but wonder, given this man's position, if SC isn't right for once.

It's interesting that most of the voices that support the current regime are the one's whose livelihood is attached to that support, while the one's who oppose it have nothing to gain, indeed are often treated like pariah.

CCE, indeed.

Posted by: Daniel | Jul 6, 2009 1:17:18 PM

Ms. Gelber hits the nail on the head--repeatedly.

Posted by: federalist | Jul 6, 2009 6:30:22 PM

I will address each point from Mr Gelber and will provide you with a response.

NLO

Posted by: Dr Nigel Leigh Oldfield | Jul 6, 2009 7:59:32 PM

Gotta love that low blow in the very first paragraph:

"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, he does strongly question whether the crime should be treated as seriously as it currently is under federal law."

I read Hansen's article, and it does not implicitly suggest -- or even come close to suggesting -- that child porn should be legalized. That's an utterly dishonest insinuation on the part of Ms. Gelber. I am sure Bill Otis is ashamed.

Posted by: CN | Jul 6, 2009 9:28:37 PM

These are not sarcastic lawyer questions. I do not know the answer but would like to.

Does the word, lascivious, have an objective or subjective standard? Does the intent of the photographer count (subjective) or does the effect on the viewer count (objective)?

What do you think of arresting parents after they submit pictures to the Fotomat showing naked kids running around the back yard? A pedophile may get sexually aroused by those pictures (objective standard), but not the heterosexual parents. If the standard is objective, the average adult does not get aroused by naked pre-pubertal children. So is the objective standard the one to be set by the reasonable pedophile? If the standard is objective and to be set by the reasonable pedophile, should a penile plethysmograph test result be submitted to show objective evidence for the objective standard of arousal in the reasonable pedophile?

http://www.stormfront.org/forum/showthread.php?t=388565

We agree that viewers of child porn are overly deterred. That allows the DOJ people to falsely say, we are addressing child porn. Meanwhile, the makers of child porn are going free to do as they please. They are harder to catch, and may require some actual work, rather than paper shuffling looking for credit card charges at the DOJ.

Shouldn't a crime cause a direct harm? How does the credit card payment cause child abuse, its paying for past abuse, not future abuse? I pay for a movie ticket for a film that promotes military enlistment. Audience members join the military, and bomb peasant marriages. Should I be liable to the injured by my remote promotion of military enlistment? If we are using a but for analysis, isn't the Big Bang the ultimate cause of all injuries, and the prosecutor should take up with God?


Posted by: Supremacy Claus | Jul 6, 2009 11:20:42 PM

Penile plethysmograph here:

http://en.wikipedia.org/wiki/Penile_plethysmograph

Sorry.

Posted by: Supremacy Claus | Jul 6, 2009 11:22:14 PM

anecdote, anecdote, straw man, anecdote, straw man...

The substantive arguments for why child porn should be criminalized are nothing new, and should be familiar to any law student. The sentencing section of the paper is somewhat disingenuous. For example:

"Of note, someone who actually has sex with a child under the age of 12 faces a sentence of thirty years to life, while someone who views or possesses a sexually explicit image of a child under the age of 12 would have a recommended sentence of 41-51 months and could not receive a sentence in excess of 10 years. "

When was the last time you heard of a child porn defendant possessing just _one_ image? I feel there is a strong parallel to the insanity of crack cocaine sentencing here.

Since locking up child porn downloaders seems to be the only popular thing the government does these days, we should not look to the DOJ for a reasoned, balanced analysis of these issues. Carry on.

Posted by: jamal | Jul 7, 2009 3:25:45 AM

""Of note, someone who actually has sex with a child under the age of 12 faces a sentence of thirty years to life, while someone who views or possesses a sexually explicit image of a child under the age of 12 would have a recommended sentence of 41-51 months and could not receive a sentence in excess of 10 years. "

When was the last time you heard of a child porn defendant possessing just _one_ image? I feel there is a strong parallel to the insanity of crack cocaine sentencing here."

Let me begin by addressing this issue from a first-hand account. My fiance' was arrested for posession of cp in Sept. 08. He is currently facing 6 1/2 years in a federal prison. There are about 60 people in his "pod" facing similar charges--all receiving 78 months.

However, my step-father who sexually abused me from the time I was 4 until I was 9, only served six years for his crime. Anyone confused yet?

As for the image count...well, do you have any idea how many images are on a 30 second video clip? A one minute video clip holds more than 600 images. All one needs is 600 images to be charged with the maximum penalty in this crime. So, my fiance' is facing the same penalty guidelines as the guy who had 83 DVD's in his living room. How does that work?

Furthermore, my fiance' had downloaded legal ADULT pornography. The zip file it came in is what contained the cp. This truly is a witch hunt where it seems that people are trying to either, make a name for themselves, or justify their jobs.

Posted by: ARL | Jul 9, 2009 4:27:06 AM

Test

Posted by: Dr Nigel Leigh Oldfield | Jul 9, 2009 8:39:14 AM

My response:

www.critest.com/
documents/
A Response to Alexandra Gelber.htm

NLO

Posted by: Dr Nigel Leigh Oldfield | Jul 9, 2009 11:20:33 AM

"pernicious crimes...exploding crime problem." Whew!

Yet another example of a prosecutor (excuse me, an Assistant Deputy Chief of Child Exploitation and Obscenity Section of the Criminal Division of the US Department of Justice) dressing up essentially benign, if ugly, acts in breathless, incendiary prose.

Remind me again how a few pathetic losers looking at illicit pictures in the privacy of their homes pose a threat to the homeland. Because I still don't get it.

Posted by: John K | Jul 18, 2009 11:42:27 PM

Thanks for the links of federal child porn prosecution and sentencing. I'm sure these will be helpful on my research.

-Daniel

Posted by: Direct response expert | Nov 26, 2009 10:53:42 AM

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