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August 24, 2010

The logic and rhetoric that drives ever harsher sentences for downloading child pornography

Regular readers know that there is an on-going debate (resulting in considerable sentencing disparity) concerning the harshness of the federal sentencing guidelines for child pornography offenses.  Against this backdrop, I found this new commentary at the Huffington Post by Lisa Madigan, the Illinois Attorney General, quite telling.  The piece is headlined "No Sympathy for Those Who Traffic in Child Porn," and here are excerpts:

Recently, a Chicago newspaper printed an editorial titled, "Sex-offender limits sometimes go too far," that amazingly sought sympathy not for the thousands of children who fall victim to sex crimes each year in Illinois, but rather for a convicted child pornographer.

The assertion was that this man, "Scott," deserves to be pitied because his life is more difficult thanks to his placement on the Sex Offender Registry. What nonsense. I find this argument both misleading and insensitive to the true victims of these heinous crimes.

Scott gets no compassion from me. I reserve my sympathy for those children among the 15,000 pornographic images discovered on his computer. These are the real victims of criminals like Scott who traffic in child pornography. Scott made a choice to ruin his life. My concern is that his horrid choice destroys the lives of many innocents who get no choice....

Recently, my office went after sex offenders on MySpace.com -- requiring the social networking site to provide information on any sex offenders maintaining MySpace profiles. This led to a federal investigation, conviction and life sentence last year for a Granite City man who was not only procuring child pornography but was forcing a local child to engage in sexual activity so he could produce his own.

Unfortunately, such cases are not rare.  One national study indicated 40 percent of those arrested were dual offenders, possessing child pornography and sexually victimizing children. Don't tell me pornography is a victimless crime.  A total of 24,494 sex offenders are registered in Illinois.  More than 81 percent of those are child sex offenders.

The subject of the recent newspaper editorial, Scott, admits he installed special software on his computer, which each night would go trolling for pornography from the Internet -- including child pornography.  Scott admits he knew that possessing child pornography is a crime.  Yet now Scott is perplexed he would suffer the consequences of his crimes.

These consequences are exactly what the public demands.  The sex offender registry was designed to protect victims, especially children, from these unspeakable crimes. I have no tolerance for those who wish to turn logic upside down and suggest that people like Scott are somehow worthy of our sympathy.

Such twisted judgment seeks a less stringent enforcement of sex offender laws.  Too many children already suffer at the hands of sex offenders.  The last thing our children need is less protection.

I realize no matter how severe the potential punishment, sex offenders will continue to be a threat. We also need to educate people on how not to fall prey.  My office has provided Internet safety training and education to more than 128,000 students, parents and teachers and more than 10,000 law enforcement officers over the past four years.

We will continue these efforts.  Such training is vital in a world that so easily and so often brings young children in contact with the Internet -- an amazing resource with equally amazing dangers.

However, we must also be vigilant in battling those who seek to minimize the threat posed by these online predators.  In this case, misplaced sympathy is a very dangerous emotion.

Ironically, the Huffington Post page on which this commentary appears incorporates a twitter feed providing links to all sorts of on-line porn.  Perhaps more proof of AG Madigan's point that the internet is "an amazing resource with equally amazing dangers."

Some related prior federal child porn prosecution and sentencing posts:

August 24, 2010 at 08:11 AM | Permalink


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I would expect nothing less than mine-run conflation from a politician. The reason why downloading child pornography was made illegal is because it allegedly created a market that would continue exploitation.

But that's not what the editorial argues. Instead, it brands all child pornography downloaders as sexual predators who create child pornography and/or try to engage in sexual relations with minors. Note how the editorial quickly moves from Scott's crime to the arrest of a Granite City man who was actually a child predator--without any indication that Scott actually posed any danger to children.

The editorial is only "telling" in the sense that it shows a typical lack of desire of politicians to speak intelligently about a subject, opting instead to pound the table.

Posted by: Res ipsa | Aug 24, 2010 9:22:44 AM

Isn't it also "rhetoric" that these offenders are just "looking" at pictures (tens of thousands of them) and that it is a "victimless" crime? People who minimize the pain and suffering of these CHILDREN like the title of this post sicken me! Have you ever seen these pictures? Have you ever heard the screams of these children when they are being RAPED and videoed for someone's viewing pleasure?

Posted by: anon | Aug 24, 2010 9:22:59 AM


If there is hard evidence that simply downloading and viewing child pornography truly creates a market for making it, then I'm completely on board with you.

The problem is, it's unclear if that's truly the case--in fact, a lot of evidence suggests that manufacturers of child pornography generally make it for themselves, not to turn a profit. And if there is no link, I have a hard time suggesting that someone should spend 20 years behind bars for something that does not create a victim.

By all means, send the sick f***ks who make the stuff away for good. (I would say in the most egregious cases, execute them--but the Supreme Court has taken that off the table.) But that's not the same as those who simply view it.

Posted by: Res ipsa | Aug 24, 2010 9:32:20 AM

Resipsa, you don't understand the distribution patterns of these individuals. Their collections are their pride and joy! They don't do it for monetary profit, they do it for status within the community and to increase their personal collections. These people aren't motivated by money.

Would you want someone who "simply downloads and views" pictures watching your kids? Of course not! Do people with "normal" sexual attractions (in other words, attracted to adults) find the need, desire or inclination to download and view rape videos of children?

"manufacturers of child pornography generally make it for themselves, not to turn a profit"...so it's ok if they create child pornography if they are just looking at it themselves? It's ok to rape children for your own viewing pleasure...as long as you are the only one viewing it? Come on!!!

Reasonable minds can argue whether 20 years for simply downloading and viewing pictures is excessive (there is a 20 year statutory maximum and this is rarely handed out, so you are using rhetoric yourself), but these people are not simply "downloading and viewing." They are hoarding and trading

Posted by: anon | Aug 24, 2010 9:53:53 AM

I understand the harm of the production of child porn. Each instance should be counted in 123D.

But, if a defendant has watched some produced in the 1920's, everyone in it has been long dead. What harm has taken place? In this example, the prosecution is really a pretextual, feminist witch hunt of the productive male, a hate enterprise.

The innocent defendant should demand his defense attorney seek total e-discovery of the prosecutor's, her agents' and of the judge's work and personal computers. If any child porn is found, refer it to the FBI. They may say, it is part of work or of research. But that is what all perps say. If any feminist utterance is found, demand immediate disqualification of the person, and dismissal. A feminist utterance is presumptively evidence of an improper motive, as might support for the KKK be in a trial of a black person.

Posted by: Supremacy Claus | Aug 24, 2010 10:10:38 AM

Anon: are you being purposefully obtuse? No one said manufacturing child porn is "ok". In fact, as I read the comment, Res Ipsa is in favor of capital punishment in some cases. He/she is simply pointing out that the kind of person who produces kiddy porn will do so regardless of whether someone else later downloads it. They are doing it for their own gratification, not to create a market for it. Thus, the rationale for lengthy sentences for those downloader-only defendants is not based in reality.

Posted by: Ala JD | Aug 24, 2010 11:55:04 AM

Isn't Lisa Madigan relying on a false dichotomy? It is entirely reasonable to deplore downloaders of child pornography, while at the same time believing that the current system often deals with them too harshly.

We don't chop off the hands of shoplifters, as some societies do. Nevertheless, we haven't made shoplifting legal. Believing strongly that something ought to be a crime does not end the legitimate debate about just punishment.

Posted by: Marc Shepherd | Aug 24, 2010 1:16:10 PM

The ultimate problem is the word sympathy, as if we can only have sympathy for the victim or the accused but not both, as if a proportionate sentence rests on sympathy rather than justice anyway. Where is the word sympathy in the Constitution or the Declaration of Independence? Indeed, maybe the founders thought sympathy for the accused good policy because governments abuse power and a government can do far more harm than any individual can do.

Speaking of sympathy, the judicial branch is required to be impartial and dispassionate when addressing the executive or legislative branch's emotive laws and interpretation of those laws. How is that a balance of powers?

If Lisa Madigan wants sympathy to reign supreme, why not fight for an amendment to the Constitution that requires sympathy to overrule the other Bill of Rights? Before long, unsympathetic Muslim's will be condemned by victims' rights advocates for wanting to exercise their First Amendment rights, and people will fall all over themselves to apologize for the Constitution. Those mean, "insensitive" founders should have predicated 9/11 don't you know? And Muslims didn't sign the Declaration of Independence anyway. So that is that.

As to creating a market for child porn, even if some child pornographers (producers) do have a motive to create a market it for it, it does not necessarily follows that that same motive applies to those who view it. Should smokers be charged for murder because tobacco companies create a market for cigarettes that kill and kill and kill? Indeed, there is good argument possession and distribution does not rise to the proximate cause of second hand smoke. So even if second hand smoke suggests a proximate cause of harm, it does not follow that the tobacco companies' marketing should factor in as a smoker's motive.

I would bet that close to 90% of those convicted of possessing or trading child porn know it is wrong and do not think it should be legalized, but they can still logically think a mandatory sentence of 5-20 years is disproportionate.

Posted by: George | Aug 24, 2010 1:16:48 PM

what a shameful commentary even from a politician.

While others have started to point out all of the logical leaps and simple nonesence that the editorial contains here are some other simply stunning leaps of logic:

"convicted child pornographer"

nothing in the article indicated that "Scott" created or even distributed child pornography - instead, even the dishonest politican appears to grant that he simply was a "consumer"

"for those children among the 15,000 pornographic images discovered on his computer"

were all of the images child pornography? Or is the number puffed up by including images of legal, but distasteful to some, adult pornography? Oh wait, it looks like she later answers those questions here: "he installed special software on his computer, which each night would go trolling for pornography from the Internet -- including child pornography"

so, reading between the lines, its highly likely that the vast majority of the 15,000 images were in fact, legal images of adults. it is also possible from HER own biased statement of the case that any receipt (NOT DISTRIBUTION OR TRAFFICKING) of illegal images were unintentional and even if intentional, were passive.

"Scott admits he knew that possessing child pornography is a crime"

and he was convicted and punished harshly for that crime, yet you keep calling him a "trafficker" and "child pornographer" without foundation (even from your own biased statement of the case) and therefore you are stating that mere possession of an item makes one a creator. I own a car and have a car in my possession - according to your "reasoning," that makes me an automaker and car dealer (where is my government bailout money as an automaker?)

"The sex offender registry was designed to protect victims, especially children, from these unspeakable crimes"

most sex offenses are committed by family members or others known to the victim. How does listing people who possess child porn change on the sex offender registry or giving downright draconian sentences which are often harsher than the penalities for actually sexually molesting a child "protect victims?" The principle harm to the victim took place when the child porn was created - yes, I can accept that distribution of images of abuse could add increased harm, but any harm would be a collective harm - the marginal harm between one more additional digital copy isn't much. It also does not follow according to any sort of reasonable logic that harsh sentences for actual acts of molestation of children or production of child pronography demands harsh sentences for someone who merely and according to your own statement of events apparently passively received some images of child porn among adult images.

"One national study indicated 40 percent of those arrested were dual offenders, possessing child pornography and sexually victimizing children."

produce the study you are relying on. Beyond that, do you mean that 40% of those arrested for "sexually victimizing children" had child porn in their possession? Or that 60% of those arrested for child porn, did not "sexually victimiz[e] children"?

"Don't tell me pornography is a victimless crime"

I had no idea that adult "pornography" was any sort of crime yet you seem to imply that it is. Okay, even adding in "child" in from of "pornography" and no one argues that PRODUCING child pron is a victimless crime. people do argue about people who merely possess it and they should - you can make a rational case for either view.

"A total of 24,494 sex offenders are registered in Illinois. More than 81 percent of those are child sex offenders."

well, duh - outside of forcible rape and related forceable sex offenses, almost all offenses which require registration under the sex offender laws are crimes against children. Lisa, maybe you should be more worried that there are (using your figures) an estimated 4563 people who committed forcible sex offenses - almost all against adult women. I know I find that to be rather scary sounding because that is a lot of rapists out there.

In any case, how about a more detailed breakdown about offenses:

what percentage were convicted solely of possessing child pron?

what percentage were convicted of having consensual sex with an underaged partner?

what percentage were convicted of production of child porn?

what percentage were convicted of child molestation?

what percentage actually committed a rape or other penetration offense of a child?

Now, how do the sentences for child molestation (probably the most common "child sex offense" compare with possession of child pron? I'd hope that everyone would consider actual molestation of a child to be a much more serious crime than possession of child pron - but chances are good that Illinois sentencing do not reflect that fact.

OF course, answering those questions would require being honest and therefore not a politician trying to hold onto office (or get a higher office) based on scaring people using poor logic and questionable statistics.

ginny :)

Posted by: virginia | Aug 24, 2010 6:03:17 PM

oh and one other thing, according to the most recent US Census Bureau estimate, Illinois has approximately 12.9 Million residents which means that by my calculation, only 0.19% of Illinois residents are registered sex offenders.

Posted by: virginia | Aug 24, 2010 6:10:21 PM

oopsie, i'm no math expert ;)

i did the percentage wrong, its actually 0.0019% of Illinois residents who are registered sex offenders

Posted by: virginia | Aug 24, 2010 6:16:28 PM

way to go virginia call out the lieing crooked politican to her face. of course she will NEVER answer. the truth would simpy get her arrested!

Posted by: rodsmith | Aug 25, 2010 12:17:05 AM

So, let's get this straight...all of you are advocating, in essence, decriminalization of possession of child pornography because the offender is "only looking," and "is not actually touching children"? So, you are ok with possession of snuff films because the possessor would "only be looking" and "not actually killing the person?" This isn't a huge leap. The actual producer of child pornography and snuff films do the dirty work by harming the individual, the possessor feeds the DISTRIBUTION of this material by simply possessing and viewing the material. If there wasn't a market for distributing the material, would there be less of it? Yes! There are pay sites for child pornography, and offenders aren't punished more severely for belonging to these sites. The trading sites, like LIMWIRE, are used by child pornographers (including possessors) to trade and increase their libraries. There is no way to get tens of thousands of pictures without belonging to one of these groups or sites.

People who view THOUSANDS of pictures of child pornographers are attracted to children, no one can convince me otherwise. The only reason most of them (and there are those who are convicted of possession who have touched and either been convicted or suspected of that crime...remember, this is a hard crime to prove given the ages of the victims) do not touch children is opportunity. Viewing child pornography ACCORDING TO EXPERTS AT NECMEC breaks down a barrier for the offender. If he sees that he can get away with that, then it's easier to make the next step. It's almost the "gateway" offense for touching offenses.

Ginny and others who are asking these questions and are advocating, in essence, decriminalization of possession of child pornography don't understand how these people operate. Did you know that most people who are convicted of possession also distribute the pornography? (federal data shows this).

I guess we will agree to disagree. I will end with this, if Ginny had a son or daughter and that child's naked picture was being traded all over the world and simply being "looked at" by child pornography possessors, would Ginny support a probationary sentence for the possessor? When Ginny's son is stared at while walking down the street because a child pornography possessor recognizes him from the picture he looks at every night, would Ginny feel her child was safe because "he was only looking?" These thousands of victims deal with this every day, and if you feel a slap on the wrist, and a "don't do that again" admonishment from the judge is enough...well, again, we will agree to disagree

Posted by: anon | Aug 25, 2010 8:01:02 AM

From just two sentences into Madigan's venomous screed to her last spittle-spraying word, I couldn't get the vision of Nancy Grace's war face out of my head.

I like what George said about the apparent incapacity of Madigan, Anon and others of the torch and pitchfork mindset to feel sympathy for "Scott"...as well as for children who've been hurt by actual molesters and pornographers.

After all, how good can life be for folks whose compulsions put them at computers looking at dirty pictures of kids? And what possible good can come from turning pathetic but essentially harmless creatures like Scott into the predatory monsters Madigan makes them out to be?

In fact, the only predatory monster I see in this thread is Madigan herself.

Only an oppressive government would imprison people for decades then hound them for life for the crime of viewing awful pictures.

Posted by: John K | Aug 25, 2010 9:28:50 AM

"So, let's get this straight...all of you are advocating, in essence, decriminalization of possession of child pornography because the offender is "only looking," and "is not actually touching children"?"

NO what we are saying is the punishment is out of balance compared to the others.

Would be the same thing if someone who patted you on the ass got life in prison while someone else who walked up and cut your head off got 6 months!

as for this statment!

"Viewing child pornography ACCORDING TO EXPERTS AT NECMEC breaks down a barrier for the offender."

Soorry the NECMEC is a joke. it's a private so-called non-profit collecting 100's of MILLIONS from the govt for the production of dubious and innacurate numbers.

Posted by: rodsmith | Aug 25, 2010 5:12:25 PM

Not much to gain from debating those who follow an assertion with the words, "...no one can convince me otherwise."

Posted by: John K | Aug 25, 2010 6:03:21 PM

Has anyone observed a new tactic and trend? The FBI using COMPUTER REPAIR people to go through customers’ disks files and then alert (snitch) on them if any under age pictures are found? A client of mine had this happen to him. PLEASE post similar tactics here.

Mention if you have encountered this type of tactic, and what defense is there for it? (There are laws on the books for requiring Photo developers to do this, but what about COMPUTER REPAIR people to compromise privacy?)

As far as this scary post on under age picture possession, it just highlights how a reptilian brain, with Puritan tendencies reacts to reality. It ranks with the Salem Witch hunters on cruelty and incompetence.

Some questions: How is her war on drugs going? How will pressuring and shutting down Craig List adult sections impact human trafficking? Why are you not able to understand technology, and the distinction between men who download adult materials (that happen to also have mixed in with it) modeling and nudist type pictures of under 18 year olds, and abusers who produce sick stuff, mentally ill people who have a history of molestation, and child predators.

By painting all as traffickers with a broad brush, and not distinguishing downloaders and people just looking a porn from the predators and abusers, she is letting real criminals fly under the radar from among the thousands of people she is tracking (or attempting to do so)

Posted by: sheep | Sep 13, 2010 5:13:08 PM

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