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August 18, 2008

Another notable sentencing opinion in a child porn downloading case

I mentioned in this recent post that I have noticed an extraordinary amount of variation in charging, bargaining and sentencing realities in child porn downloading cases.  And today I received a copy of a recent sentencing opinion in such a case that provides another example of the challenges these cases present. 

The opinion in US v. Ontiveros, No. 07-CR-333 (E.D. Wisc. July 24, 2008) (available for download below), which explains the court's reasons for giving a sentence of five years' imprisonment rather than a much higher sentence recommended by guidelines, has lots of notable passages.  I found especially interesting the discussion of the defendant's offense behavior:

Ontiveros, like many who have accessed child pornography via their computer, seems not to have initially appreciated the magnitude of the offense he was committing or the risk that he would be caught.  The manner in which computer technology and high speed internet access have made such material readily available in the presumed privacy of the home has removed several substantial impediments to seeking out such material that previously existed. No longer must a person travel to the seedy side of town, walk into a dirty book store, make a request for the sordid material to another person from whom one’s identity could not be readily concealed, and pay for it.  The easy availability of the material at no cost with the click of a mouse, while at the same time preserving one’s anonymity, leaves little but one’s natural aversion to depictions of the abuse and degradation of children to stand in the way of obtaining it. And as the popular culture has become more and more saturated with a debased concept of human sexuality, this natural aversion in many people seems to have grown weaker.

A further factor seems to be the lack of appreciation of the harm that simply viewing such material does to children.  In some respects, the internet seems analogous to a huge file cabinet containing an almost limitless number of documents and other forms of information. Under this view, accessing child pornography can be rationalized as simply pulling out a drawer and simply looking at photo that someone else took in the past.  As long as the individual who accesses the pornography is not himself abusing children to produce it, selling it in order to profit from it, or paying for it so as to stimulate demand for it, he can tell himself that he has done no harm to the children depicted.  This line of reasoning, of course, is directly contrary to Congress’ finding, noted above, that “[e]very instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.” Pub. L. 109-248, Title V, § 501, July 27, 2006, 120 Stat. 623.  And it also ignores the fact that further demand for such material is fueled by those who seek it out and share it with others.  But these harms are indirect and abstract, and thus often unappreciated or easily ignored.  This is apparently why people who express shock at the idea that they would ever intentionally harm a child can engage in such behavior.

While these changes in technology and the culture, and the lack of appreciation of the harm done to children do not excuse the behavior, they do suggest an explanation for why people such as Ontiveros with no previous history of criminal or abusive conduct seem to be committing such crimes with increasing frequency.  They also suggest that with the realization that such conduct is not anonymous, that it carries substantial penalties, and that even simply viewing it does substantial harm to children, first-time offenders such as Ontiveros are unlikely to repeat. Treatment directed to increasing such awareness can be provided within the sentence structure I have ordered.

Download Ontiveros.pdf

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August 18, 2008 at 05:42 PM | Permalink


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And given the court's recent interest in international standards, we have this news article today from Britain. Here the man was a professed "librarian" for a group of pedophiles with "hundreds of thousands of images". The sentence? 45 *months*. Four years for what would have undoubtedly have gotten him a one million year sentence in Arizona.


In addition, I wonder what Scalia would have to say about Congress's finding of fact in this regard given his profess skepticism of them in other areas. I noticed that the judge didn't say that he agreed with Congress's findings either, merely that he was bound by them.

Posted by: Daniel | Aug 18, 2008 6:56:10 PM

Here is the leading Scottish judgement on downloading child pornography. The approach to sentencing is not dissimilar but the sentence is considerbaly less severe.


Posted by: neil hutton | Aug 19, 2008 5:40:34 AM

A man accused of storing child pornography on his computer has been cleared after it emerged that his computer had been infected by a Trojan horse, which was responsible for transferring the images onto his PC.


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Posted by: hesslei | Aug 19, 2008 7:27:07 AM

This kind of sentence makes me angry at the guidelines, which forced the judge to give him at least 5 years.

Based on the opinion, I'm not convinced he should go to prison at all.

Posted by: | Aug 19, 2008 8:54:19 AM

"Based on the opinion, I'm not convinced he should go to prison at all."

He never should have been prosecuted. What people don't understand is that U.S. attorneys offices' budgets are tied to the number of indictments issued. What I've realized is that when the government starts pulling cases out of state court and indicting low, low level drug offenders and low level fraud cases, all that means is that the U.S. attorney is trying to meet his indictment quota in order to maintain funding for his office. Based on the facts presented in the opinion above, there was no social good that resulted from prosecuting this guy. And that's the case with a lot of prosecutions. I have so much more respect for the work of state prosecutors, who have to prosecute whatever case comes to them, than for that of AUSAs, who are largely able to pick and choose what cases to prosecute.

Posted by: John | Aug 19, 2008 9:40:16 AM

Always interesting to read how viewing an image is exploiting a minor. If they don't know you are viewing it, how does it exploit them? If you don't pay for these images, how does it create demand? Do people go out and make more images for free simply because people want them? I can almost guarantee you that not one in hundred people have any idea there is mandatory sentencing in these cases. The sad part is the real pedophiles know all about how to avoid being caught, but the average person that is "dabbling" in this has no clue. This is just the "system" pandering to people and showing them how hard they are working on solving the problem of online pedophiles (yes, you are instantly labled one for looking at Child Porn). Even if you know you are not, and there isn't a shred of evidence you are, just the fact you looked at pictures is enough for the government. There answer is to always "get you help" for your problem, even if your real problem is ignorance of the law. If you watched any videos of 9/11 with planes flying into buildings, you must have a demented mind, because you are watching people being killed instantly, or maybe down deep you have repressed feelings and haven't admitted you secretly desire to hijack a plane and do the same thing. The hysteria about this is incredible.

Posted by: JC | Oct 5, 2008 10:59:17 AM

My reason for this e mail is somewhat a tough subject matter. Internet usage of young adults and child porn. I have a great family, 2 sons and a daughter. My eldest son is 23, (Kyle) and Kori who is 20 and handicapped with downs. Here is our dilemma…
Kyle got married a few years back has a super wife and a great daughter 3 years old. Kyle as with a lot of young adults of today are very unaware of internet dangers and what lurks out there. This is also very true of a lot of teens in school. Kyle was arrested back in October of 2007 at his home for peer to peer file sharing by the FBI.
From what we gathered the charges were an ongoing investigation of Kyles use of the internet. The FBI tracked his use of the internet for 8-months.
Like a lot of Americans all across the US there is a lot of P2P, peer to peer file sharing. Such sites are Ares, Lime wire and others I am sure you have knowledge of these.
Kyle got into downloading hundreds of songs and videos and as he states he would type in search words and all sorts of movies would pop up. Since he had his own internet business he would just click on many movies and bulk download the movies. I found out that a lot of the movies that one could download comes from 3rd world countries that have little or no laws at all on child porn. When Kyle opened a few movies that showed the child porn he would delete it and go on about his business not really understanding or knowing the ramifications of the laws. He ststated at his sentencing that after he seen these movies download he was curious as to how much of this was out there and thus when he would download he would notice quite a bit of child porn.
Myself was not even aware of a lot of the laws as far as what can and will happen if one unknowingly would download such porn. By the time Kyle would delete the movies he found to be child porn it was already too late as others in the internet world would take the files from his system peer to peer files and download them.
The charges were 3 counts of child porn. One downloading child porn,2-viewing child porn since he actually opened the file and 3-distribution of child porn since others would download movies from him before he could delete them.
My son was sentenced Tuesday (December 2nd) in Cleveland Federal court by Judge Lesley Wells on the 3 counts. Kyle pled guilty to the charges due to there was no way he could deny the charges. As I said he was sentenced to 10 years in a Federal prison on each charge. Judge Wells said her hands were tied to follow the sentencing guidelines. She wished she could do more and she thought my son really should not have to be sentenced to this long of a sentence.
My real issue here is this is a young man starting out in life has now lost everything. This is a first offense of something that he was not even really aware of as far as laws and such. We lost our son and I ll be long dead and in the grave by the time he gets out. He will be sent to North Carolina Federal prison. To me in this instance the time does not fit the crime. He was not producing child porn, selling child porn or participating in a so called child porn ring. He was a young adult caught up in the system that does not even begin to try and go the extra mile to educate young people of what lurks out there in the internet. My wife and I feel we have failed as parents to Kyle.
Had the FBI been trained or used better judgments and approached my son in the first months of their investigation and let him know what the laws were and how it effects young people such as he. I am sure the ruining of a young family, my family, and his wife’s family could have been avoided.
As I see it the FBI went over and beyond the call of service by not stopping a crime that it could have. What has this country come down to?? What I would like to see is Congress doing more to stop the peer to peer sites, do a better job and intervention with young people on what exactly they can get into. Young people today seem to show no fear of a lot of things out there in this world. They really need to get the real message here and not how my son was railroaded by the FBI and now will be gone for a very long time. Education of younger adults is far more practical than ruining them for life. How is going to prison for this going to make Kyle a better person???
Don’t get me wrong child porn is by far one of the most terrible crimes out there in the world and the real victims are these poor children.
I feel that the punishment in this case was over and beyond the realm of reality. What good did it do to sentence my son to 3-10 year sentences. Do you think this will send a message to others?? I don’t see why a life and family especially a young family starting out in life has to totally be destroyed by the government. Why doesn’t the FBI and the government go after those that actually commit the actual crime to these children?
My son did not rape, murder, rob or other terrible crime yet he is punished way beyond what those people get. I read and see so many others that have done far more harm with child porn yet they get probation and or only a few years. What is it with our country??
Seems there really is no real justice

Posted by: Kevin Y | Dec 14, 2008 8:48:24 PM

I know what you mean I have a son up for same thing but has plea bargained to one count looking at 7-25 years.. very hard for a parent to go through actually sentencing in March but am not sure what to expect.

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Posted by: seodescy | Apr 30, 2009 11:30:45 AM

Kevin and mom, your stories are heartbreaking. I just found this blog today (years after your comments) but I hope you will see my reply. Mandatory minimum sentences + media-generated hysteria about child porn + requirements to turn in people suspected of using child porn...it all comes down to no hope for child porn users. How would a user of child porn get help to break his habit without getting turned in? How would a child porn user go to law enforcement to identify a person in a child porn image--without getting arrested himself?

My heart goes out to both of you. My husband is in a similar situation.

Posted by: marie | Jun 16, 2012 12:20:37 PM

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