Looking vs. Touching

Is possession of child pornography a crime worthy of years in prison?

Amy was eight when her uncle began raping her. He took pictures. Last month the Supreme Court considered what restitution Amy is entitled to collect—not from her uncle but from a man, Doyle Paroline, who downloaded two of those pictures.

The potential answers to that question range from zero to $3.4 million. According to The New York Times, the justices seemed "stumped." Their confusion reflects a deeper problem with the justification for criminalizing possession of child pornography, an offense for which legislators have prescribed increasingly harsh penalties with little regard to sense or justice.

Amy's lawyer puts the past and future cost of her sexual abuse, including lifelong psychotherapy, an interrupted college education, and reduced earning capacity, at $3.4 million, some of which is attributable to her knowledge that images of her uncle's crimes are circulating on the Internet. As Justice Antonin Scalia observed during oral argument in the case, Amy "has undergone serious psychiatric harm because of her knowledge that there are thousands of people out there viewing her rape.''

Yet it is no easy matter to allocate responsibility for that harm under a federal law that requires a defendant to pay his victim "the full amount of the victim's losses." Under a theory of joint and several liability, Amy's lawyer argued that Paroline should be on the hook for the full $3.4 million. Paroline's lawyer argued that he owes her nothing because downloading the pictures her uncle took was not the proximate cause of her suffering.

In between those two extremes, Deputy Solicitor General Michael Dreeben said judges should assess restitution on a case-by-case basis. Another possible approach: If you divide $3.4 million by the estimated 70,000 people who have seen photographs or videos of the crimes committed by Amy's uncle, the result is less than $50.

None of these solutions is very satisfying. Once images of sexual abuse have been viewed 1,000 times, Justice Samuel Alito wondered, is it even theoretically possible to assess the damage caused by the 1,001st viewing?

The difficulty of deciding exactly what harm Doyle Paroline has done to Amy raises the question of why possessing child pornography is treated as a crime that merits years in prison. As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years. Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common, such as using a computer, swapping photos, or possessing more than 600 images (with each video counted as 75 images). The maximum penalty is 20 years. By comparison, Amy's uncle served 10 years for what he did to her.

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess "sexually obscene images of children"—production of which need not entail abuse of any actual children—face the same heavy penalties.

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children." Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack. Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.