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May 25, 2017

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 at 10:57 AM | Permalink


This is bad reporting so I'm not hopeful for the rest of the series but I'll take a look. The fundamental problem with sentencing--which the article hints at but does not confront--is the fact that contact offenses are almost 100% local or state crimes. Unless the Mann act is involved the feds don't have any jurisdictional hook. So that means contact crimes have to be prosecuted by the states and imprisoned by the states and states don't have the endless funds that the feds do. On the other hand, child pornography crimes almost 100% federal crimes (if the feds want the case) and feds have much greater resources at all levels.

The article overlooks that fact that in some cases the feds don't take the CP cases even when they can--if they think the offender is no so bad they let the state handle it and the states have much lower sentences.

Posted by: Daniel | May 25, 2017 11:44:15 AM

And, no matter what the justification for similar treatment, there is a gigantic qualitative difference in culpability between actual hands-on offenses and possessing or "distributing" (most distribution cases are based on possession within a file-sharing program rather than volitionsl posting, selling, trading, or sending images).

Posted by: Fat Bastard | May 25, 2017 2:10:29 PM

They should start hammering pimps who use minors.

Posted by: federalist | May 25, 2017 2:54:33 PM

I am most interested in the comment that "This has impacted them for the rest of their lives.” The comment I usually hear is "Every time an image is viewed it re-victimizes the child." There is no evidence to support that statement. If it were true that every time an image (or recording) of victimizing was seen, it re-victimizes someone then we should quit broadcasting anything where a victim is created (e.g. Rodney King).

Posted by: Anne | May 25, 2017 3:29:12 PM

I'd like to expand and clarify a point I made in my first post. There has been a lot of talk from time to time about the role that prosecutor discretion plays in ultimate sentencing outcomes. However, it appears to me that this aspect hasn't be examined in any great detail within the context of child pornography. Child pornography can be prosecuted on the federal level or the state level depending on how charges are structured. For example, transportation or distribution is almost exclusively a federal crime whereas possession can be a federal or a state crime. This gives federal prosecutors huge leverage because they can waive their right to prosecute under federal law and let the states handle the case simply by characterizing the offense as a possession offense rather than distribution offense.

What makes it an especially powerful decision is that there are pluses and minuses to the defendant to being prosecuted by the state vs by the feds. States generally have shorter sentences but on the other hand the feds tend to have better prison facilities and there is less risk of violence to sex offenders in federal prisons (where the are often segregated) vs state prisons (where they are often integrated in to the general population).

While I understand and even share the concern about contact vs non-contact offenses the area of prosecution decisions in child pornography cases is an area where more research needs to be done. In its own way it highlights some of the major issues with the doctrine of dual sovereignty recently highlighted by Justice Ginsburg's concurrence in PUERTO RICO V. SANCHEZ VALLE.

Posted by: Daniel | May 25, 2017 4:10:01 PM

To follow-up on Daniel, a lot depends upon what agency does the investigation and the degree to which the USAO reaches out to local prosecutor and police agencies to encourage referrals.

While I don't have any data on this issue, my experience is that a lot of child pornography cases start with the local police -- a report made by an ex or a comment in a potential child sex case or discovered while looking for something else on a person's computer for an unrelated charge. If the feds have good relations with local law enforcement and encourage referrals, a good chunk of child pornography cases go federal. If the feds have a bad reputation (e.g., only taking cases if they are "big" and "easy") with the locals, the cases tend to stay in state court as the feds never hear about it. Just to use my state as a reference, in the last completed fiscal year, there was slightly over 400 felony charges in the "obscenity" NCIC category which (given the relevant statutes) should be mostly state child pornography charges. That's a lot of child porn charges staying with local prosecutors, only slightly less than the number of homicides charges filed by state prosecutors.

Again speaking from my personal experience, the same is true for non-child porn cases (e.g., drugs, guns, robberies). Who initially investigates the case and the degree of outreach by the USAO determines whether the case goes federal or state. While discretion is part of it, the other part is simple institutional default -- what officers, assistant state prosecutors, and assistant U.S. Attorneys are told by their superiors about which types of cases get referred to the feds and which cases stay with state prosecutors (even if a referral is attempted) without even making any case-specific decisions.

Posted by: tmm | May 25, 2017 5:02:24 PM

I saw ISIS behead a guy on a Youtube video. Should I be charged with murder?

The witch hunt is on for the productive male by the feminist lawyer, and its male running dogs.

It is tempting to support violence against the oppressor and Inquisitor.

I suggest something better. Total e-discovery all around. On the prosecutor, on its feminist supervisor, on the low life scum male hunter on the bench, on any complainant. Then post the content to the internet.

While we are talking about the suborning of child abuse, all internet providers, browser owners, and laptop makers should be seized in civil forfeiture for the crimes taking place on their platforms.

Posted by: David Behar | May 26, 2017 2:42:06 AM

To my favorite criminal defense lawyer here.

Explain to the class why you are not demanding total e-discovery on all the adversaries seeking to destroy the life of your client, including the dirty scum sitting on the bench.

I think I know. It is because you stink. You are working for the other side. If you were to ever fulfill your duty of a zealous defense, you would deter the enemies of your client. You would then lose your business. Your conflict of interest has no remedy.

Posted by: David Behar | May 26, 2017 2:46:27 AM

Child porn laws are draconian and need to change.

Posted by: kat | May 26, 2017 10:22:42 AM

Anybody who produces or knowingly consumes child pornography is contributing to the brutal exploitation of defenseless children and should really have the book thrown at them. Child pornography is tantamount to "pimping" a victim who cannot fight back. One does not even have to be male to be a pimp or a female to be a victim. The recent arrests and convictions of several child pornographers includes some female defendants along with male ones.

With that said, however, the post-sentencing registration requirement does not protect victims of this horrid crime. While such an offender should serve a harsh sentence, once that sentence is completed, then the punishment should stop. Not only do such laws fail to protect public safety and victims' rights, they actually put police and other law enforcement personnel at needless risk to their own safety. Ostracizing somebody who has served his or her time will only make that individual vengeful toward authority. We had one case in Augusta, GA, not too long ago where a former sex offender decided to phone in a bomb threat to the police station's local sex offender registry. Fortunately, the threat was fake and officer got killed as a result. In Minnesota, one former sex offender lunged at the judge and prosecutor and threatened to kill them before a bailiff overpowered him. What drove these defendants to attempt to murder law enforcement personnel was the registration requirement.

I can imagine two hypothetical types of scenarios where a former sex offender during home registration might kill an officer during such days as Halloween where many places have a stay-home requirement. In the first scenario, the former sex offender might honestly mistake the officer checking on him or her for a prowler. After all, the former sex offender during such holidays is not allowed to have their front porch light on after dark and could easily mistake the police for vigilantes or burglars. The home-dweller in that case might decide to invoke the "Stand Your Ground" laws and shoot the officer dead, not realizing until too late that he or she accidentally killed an officer, making himself or herself eligible for a possible death penalty for killing a police officer.

The second scenario would be the deliberate one where a former sex offender wants to get even with Megan's Law by intentionally booby-trapping his or her home with the intention of maiming or killing an officer.

My point, give this offender a severe sentence for committing the crime of child pornography by all means. But once this offender has served his or her full sentence, then don't use any stupid laws like registration that will simply ostracize and provoke that offender into killing our law enforcement officials.

Posted by: william r. delzell | May 26, 2017 10:24:49 AM

"Anybody who produces or knowingly consumes child pornography is contributing to the brutal exploitation of defenseless children and should really have the book thrown at them."

How is this different from people who watch videos of:

Street auto races
Ghetto people fighting in the school cafeteria
Physical pranks that are batteries without consent
Adult porn of people having sex for high fees
Politicians lying in a speech
Smoking crack and marijuana

Is there a Free Speech right to receive information, not just to express information? Is watching the above videos protected because it is the receiving of free speech?

Posted by: David Behar | May 26, 2017 12:50:44 PM

William. I oppose killing law officiasl. They will be replaced by grateful competitors. I support suing law officials, to make them suffer as they do us.

Posted by: David Behar | May 26, 2017 1:02:56 PM

william r. delzell: "Anybody who produces or knowingly consumes child pornography is contributing to the brutal exploitation of defenseless children and should really have the book thrown at them."

Why should the book thrown at the possessor be heavier than the book thrown at the producer? Or, didn't you get the point?


Posted by: Huh? | May 26, 2017 5:22:45 PM

I guess my comment caused misunderstandings. I never advocated killing any law enforcement officials. My point was that some former sex offenders might be driven to or tempted to do this if the restrictions make them bitter enough to feel they no longer have a stake in society. Secondly, I didn't say the possessor should have a heavier sentence than the producer. If anything, the producer should; or they both should. I hope this clears up any misunderstandings that David Behar had. I thought that I had been clear about these two point. If not, my mistake.

Posted by: william r. delzell | May 27, 2017 2:42:24 PM

Good conversation! So much injustice.

Posted by: LC in Texas | Jun 2, 2017 7:37:12 PM

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