Crime

Dirty Old Men and Judicial Deviation

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Federal judges are asking the U.S. Sentencing Commission to give them more flexibility in imposing penalties on people for possession of child pornography, saying the recommended punishments are excessive in some cases. Although federal sentencing guidelines, unlike minimum sentences set by statute, are no longer mandatory, judges still worry about being overturned if they deviate from them too dramatically or too often. In child pornography cases, the urge to deviate appears to be fairly common. In an interview with USA Today, Jay Zainey, a U.S. district judge in New Orleans, "cites the hypothetical example of a frail 80-year-old widower who views child pornography on his home computer and is not a risk to act against children." Under the guidelines, such a defendant would receive a minimum sentence of five years. "That could be a life sentence," Zainey says. "You must have tough penalties for child pornography—it's a horrible offense and you have to have stiff penalties—but you should be able to look at each case individually."

I agree with Zainey that a five-year sentence for this fictional octogenarian would be excessive. In fact, I'm not convinced that mere possession of child pornography (as opposed to production of it, which involves the sexual abuse of children) should be a crime to begin with, let alone a felony. It's telling that Zainey's rationale for judging five years too long a sentence in this hypothetical case is the defendant's predicted propensity to commit crimes against children. In other words, people are being sent to prison for possessing child pornography based not on their contribution to the demand for the product, which encourages further abuse of  children (as the official argument goes), but based on an assessment of their likelihood to abuse children themselves. They are being punished, in essence, for future crimes they probably never would have  committed. Or, if you prefer, they are being incapacitated to stop those possible crimes from happening, kept in preventive detention under the guise of retribution (as opposed to preventive detention under the guise of psychiatric treatment, which is what happens when states lock sex offenders up in mental hospitals after they've completed their sentences).

The assumption that everyone caught with pornography featuring minors is a potential child molestor helps explain the tougher-is-always-better approach to this offense. As I noted in a 2007 column, that tendency can reach jaw-dropping extremes, as with the Arizona man who was punished more severely for looking at pictures of sexually abused children than he would have been for committing an actual sexual assault on a child. Jesse Walker explored "the blurry boundaries of child porn" in the July issue of Reason.

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  1. Jacob,

    “In other words, people are being sent to prison for possessing child pornography based not on their contribution to the demand for the product, which encourages further abuse of children (as the official argument goes), but based on an assessment of their likelihood to abuse children themselves.”

    That is another way of saying that it is a thought crime. Child pornography is a thought crime. I don’t see any other way to view it.

    1. So you admit that you view it?
      😉

    2. Prosecuting someone for looking at pictures of crimes they did not hire someone to commit is prosecuting a thoughtcrime.

      “It’s too hard to capture the actual child molestors, so we have to go after people who found those pictures for free on the internet” is an epic civil liberties fail for me.

      I’m ambivalent about people who’ve knowingly paid for such pictures — should we judge someone buying pictures from a database of pictures already taken and not being added to, as being different from people buying from someone who is actively adding pictures? Seems like in the former, the purchaser is not hiring someone to go out and commit crimes, while in the latter they are, in fact, paying someone to commit a crime.

      1. I disagree. It’s no different from buying a watch or car stereo off a guy you know stole the merchandise. In fact, it’s worse.

        1. It’s more like buying a picture of a guy in the act of stealing a watch or car stereo.

          Analogy fail.

          1. Not really. The illegal product here is the picture itself, not necessarily the underlying act being photographed (thought that may also be illegal). My analogy holds much more than yours.

            1. Precisely the illegality of the picture is challenged.

  2. I would actually say that(in most cases) possession of child pornography does not actually increase the demand for it because usually they will download it for free from file sharing sites and the producers(who probably dont even know its on the file sharing site) wont get a penny from the people who download it.

    1. Interesting point. But then you would agree that poeple who pay for child porn are culpable?

      1. No, there’s still the issue at personal liberty at hand and even though whatever it is you may be pleasuring yourself to is disgusting, who are we to say what you can or can not pleasure yourself to.

      2. I definitely agree that someone who says “I will give you X amount to go out and take pictures of child porn”, and then follows through with payment for the finished product is guilty of the crime of soliticiting child molestation.

        It can be murkier when there’s a purchase but no explicit hiring to take pictures, such as purchasing pictures already existing, as I discussed above.

        1. There’s no way around the fact that the pictures are the proceeds of (and a further part of) a crime against a child.

          // Of course this is in reference to actual child porn, not a cell phone pic some 17 year old takes of themself.

  3. If the rationale is that child porn possession is a precursor to actual molestation of kids, I find myself in agreement. However, I don’t think that’s the reasoning at all, but, as Jacob Sullum mentions, participating in the molestation of children through the creation of demand for same.

  4. So I suppose the continual humiliation of the victims, given that the video was produced without their consent, is irrelevant?

    1. Suppose a forgeigner is taken hostage by Al-Qaeda and used in propaganda videos. If they escape, do they have some claim against CNN and every network that showed the footage?

  5. I don’t remember the “creates demand” justification showing up in arguments until it wasn’t reasonable at all, after asymmetrical data dumps took the place of the market-market. Does anyone believe it, or is it only a dishonest appeal to dumb libertarianism, like Democrats’ posing as champions of civil liberties?

    If the rationale is that child porn possession is a precursor to actual molestation of kids, I find myself in agreement.

    Why? There may not even be a significant correlation. Does anyone know? Uncle Touchy has the family photo album already. And he’s in it. HOT.

    1. Reading my post again, I see that I was unclear. I don’t see viewing kiddie porn as a precursor to actual molestation of kids any more than I think porn involving adults is a cause of rape or sexual assault.

      I do see it as the fruit of a poison tree, the final terminus of a per-se illegal activity. In that, it should be illegal.

      1. Speeding and resisting arrest are per se illegal as well; that doesn’t make watching COPS a crime. Or is it only a crime if I get-off on watching COPS?

        1. No, but that’s another specious analogy. To make your analogy work, you’d have to have the producers of COPS actually cooperating with the perpetrators of the crimes, not the police. The producers would be working with the criminals, not the police and, in supporting the criminal acts, would be aiding and abetting such crimes.

          1. No, but that’s another specious analogy. To make your analogy work, you’d have to have the producers of COPS actually cooperating with the perpetrators of the crimes, not the police.

            Round these parts, some would argue that the police are the perpetrators of a lot of the crime….

          2. But aren’t they cooperating with criminals, in effect? Where would they be without crime?

            Similarly, what if you’re collecting child porn for an expose on the subject? And then publishing a meta-collection, so people can see what child porn is about? But then it really does come down to the intentions of the consumers, rather than abetting its production.

            1. Are you seriously contending that criminals are perpetrating crimes in order to have them shown on film, thus facilitating their apprehension, conviction and punishment?

              And if you’re collecting kiddie porn to do an expose’ on the subject, you’d better be working with the police to remove all suspicion as to your motives.

              1. But why should your motive make any difference, if the effect is the same? Or is the effect not the same in relevant aspect?

  6. They are being punished, in essence, for future crimes they probably never would have committed.

    No they are being punished for consuming the product of child molestation. No different in legal culpability then paying a killer to go kill someone.

    1. Then why did the judge say anything about the convict’s personal threat to children?

    2. The analogy only holds if the person in question commissioned its production.

      My position on the question, I think, approaches Sullum’s; I to question the wisdom of blanket prohibition on possession, though for pragmatic reasons, which were illustrated in an earlier Reason article (I think it was on Reason)…

      Obviously production should be illegal, I don’t think there’s any question about that, and those involved should be punished. However, *finding* them is rather difficult, let alone gathering evidence against them. The advent of digital photography has made this process even harder, since we can no longer rely on photo developers to act as watchdogs (not exactly a comfortable situation to begin with).

      So what avenues are left open to us? Tracing it back from consumer to producer. However, consumers are understandably hesitant to cooperate (even accidental consumers, such as those people who get malicious viruses) when doing so essentially amounts to confessing to possession of the materials in question. (Obviously immunity can be granted, but the situation is so politically charged that prosecutors might be hesitant to grant it; furthermore immunity only works in the legal system. There is no social immunity.)

      If there were no law against simple possession, people would be more willing to cooperate with investigations to find the real culprits, the producers, without having to worry about their own (legal) skin.

    3. No they are being punished for consuming the product of child molestation. No different in legal culpability then paying a killer to go kill someone.

      What if I masturbate to crime scene photographs of raped and murdered women? This is, as you say above, the “the final terminus of a per-se illegal activity.” These are, I assure you, legal, and can be found on the internet as well as in forensic textbooks.

      What about forensic images of raped and murdered children? If the former are legal for possession, why are the latter illegal?

      Or, in another vein, images of child molestation are forensic evidence. The more widely distributed they are, the more likely it is that someone will recognize the child, room, furniture, pictures in the background. etc. In other words, the more likely it is that the abuse could in theory be stopped. While there is the theoretical possiblity of increasing harm by making possession of these images legal, there is also a theoretical possiblity of benefit.

  7. “In fact, I’m not convinced that mere possession of child pornography (as opposed to production of it, which involves the sexual abuse of children) should be a crime to begin with, let alone a felony. ”

    The illicit pictures should be evidence of being an accessory after the fact of the crime of sexual abuse.

    1. When it’s a 16 y/o model legally posing topless in Europe?

    2. The illicit pictures should be evidence of being an accessory after the fact of the crime of sexual abuse.

      When it’s a couple of American teenagers taking the pictures themselves?

      1. Is this a concession to the case of a 40 year-old man sexually molesting a 2 year-old on film?

  8. I couldn’t care less one way or the other about the 80-year old who downloads some child porn. What I’m worried about is the 17-year old who just received a topless “sext” from his 16-year old girlfriend, and the 5+ years HE could spend in jail…

    1. And her, and their friend, and anyone who sees the picture when it ends up online on a site or folder of “amateur teen” pics.Most of whom are college age or older.

  9. The illicit pictures should be evidence of being an accessory after the fact of the crime of sexual abuse.

    When it’s a commercially produced American porn movie filmed in the early/mid 80s with an actress working (unknown to the producers at the time) with a fake ID? Ans she’s 40 now.

    1. I used to have copies of those Traci Lords videos, including the underage ones. Should I have been thrown in jail for viewing an actress who sure as heck looked and acted like an adult?

      Tossed them tout suite when I found out about her being underaged, BTW.

  10. “Child pornography” is a rather broad legal category including the examples I gave above.If you’ve surfed porn online you’ve likely “possessed it” whether you know it or not.

    1. Such as the stuff you can find at sites like metbabes.com that look underaged, even though the disclaimer on the site says otherwise.

  11. Giving a 80 year old a five year sentence is not giving him a life sentence. He lived 80 years without being in jail, so he did not serve life nor even a major portion of his life in jail. Also being 80 should not give you a get out of jail free card in fact he should know better since he had 80 years to know what the law was. And finally there have been cases where nice old frail 80 years old have committed all sorts of crimes including child molestation so he is not automatically harmless. The only people who are totally harmless are the dead and being 80 is not the same as being dead

    1. Cool story bro.

  12. Certainly Sullum’s hypothesis would explain prosecutions for obviously fake child pornography (cartoons, drawings, etc.) where no crime or abuse would have been committed in production.

    On the other hand, it makes the unnecessary presumption that the driving factors here are differing ideas of justice, rather than a set of demagogues using public antipathy for pedophiles to score political points. Assuming the latter explains both prosecution for virtual pornography as well as idiocy like charges against sexting teens and sexually active teenagers.

    1. On the other hand, it makes the unnecessary presumption that the driving factors here are differing ideas of justice, rather than a set of demagogues using public antipathy for pedophiles to score political points.

      We’re well aware that the motivation for most of these laws is political.

  13. Several thoughts:

    a.) There is a large degree of difference between accidentally possessing pictures of 16- or 17- year olds doing what kids that age do and actively seeking out pictures of nine-year olds being sexually molested by adults.

    b.) Agree with Jeffersonian’s argument that it’s like buying goods you know are stolen, therefore should be a crime and creates some complicity. A better analogy might be watching a snuff film. If there is a consumer market for repulsive and extremely illegal acts with real live victims as entertainment, the production of such entertainment will continue and more victims will be preyed upon. They should of course be focused on squelching the supply more than the demand, but the demand is still complicit to a degree and therefore should be punished.

    c.) The tricky part of enforcing child porn laws is the fact that the viewers might be motivated by some sick perversity, but some might also just be morbidly curious to see one of the most atrocious acts possible. Motive is a big question mark that is difficult to prove, and it sucks that someone’s misguided moment of curiosity could end them up in jail for years and on the sex offenders list for life.

    d.) Agree with Sullum’s point that it’s weird that child porn viewers would be sentenced to five years in prison when actual child molesters often get out in two. Then again, nonviolent drug users can get longer prison sentences than child molesters, so…

    e.) Libertarians have absolutely nothing to gain from defending child molesters and child porn viewers. From a purely political perspective, this is why libertarians look like nutjobs. A rape is amongst the biggest violations of individual rights, and libertarians should be all for a harsh crackdown on such actions. Personally, I would put a real child molester who commits an act of rape (and maybe any other rapist as well) away for life – an act like this can destroy a person’s life and statistics have sadly also shown that the molested are more likely to eventually become molesters – child molestors should therefore get no chance to commit repeat offenses. A 19 year old who consensually sleeps with his 16-year old girlfriend can merit sympathy and might be an argument we can win, but we should be hard line about people who violate others’ rights in a manner so grave, be they from the government or not.

    1. a.) There is a large degree of difference between accidentally possessing pictures of 16- or 17- year olds doing what kids that age do and actively seeking out pictures of nine-year olds being sexually molested by adults.

      There is considerably less of a degree of difference between accidentally possessing a picture of a 16 year old engaged in the acts such kids do, and of accidentally possessing a picture of a 15 year, 11 month, and 30 day old doing the same thing.

      The line here is way fuzzier than you might think. I live in a state that recently had an age of consent of 14, and there was a HUGE battle in the legislature about upping it a few years, with the vote seesawing between making it 14, 15, or 16.

      b.) Agree with Jeffersonian’s argument that it’s like buying goods you know are stolen, therefore should be a crime and creates some complicity. A better analogy might be watching a snuff film. If there is a consumer market for repulsive and extremely illegal acts with real live victims as entertainment, the production of such entertainment will continue and more victims will be preyed upon. They should of course be focused on squelching the supply more than the demand, but the demand is still complicit to a degree and therefore should be punished.

      Again, analogy fail. It’s like buying pictures of a stolen watch or car.

      And comparing watching a video of someone just shy of her 18th birthday having consensual sex, with watching a snuff film, is a huge analogy fail.

      c.) The tricky part of enforcing child porn laws is the fact that the viewers might be motivated by some sick perversity, but some might also just be morbidly curious to see one of the most atrocious acts possible. Motive is a big question mark that is difficult to prove, and it sucks that someone’s misguided moment of curiosity could end them up in jail for years and on the sex offenders list for life.

      You’re basically arguing for a thoughtcrime here, where the exact same act of viewing a video is a crime or not depending on what you think is going on in their heads while watching.

      d.) Agree with Sullum’s point that it’s weird that child porn viewers would be sentenced to five years in prison when actual child molesters often get out in two. Then again, nonviolent drug users can get longer prison sentences than child molesters, so…

      The word you should be looking for here is not “wierd”, but rather “wrong”.

      e.) Libertarians have absolutely nothing to gain from defending child molesters and child porn viewers. From a purely political perspective, this is why libertarians look like nutjobs. A rape is amongst the biggest violations of individual rights, and libertarians should be all for a harsh crackdown on such actions. Personally, I would put a real child molester who commits an act of rape (and maybe any other rapist as well) away for life – an act like this can destroy a person’s life and statistics have sadly also shown that the molested are more likely to eventually become molesters – child molestors should therefore get no chance to commit repeat offenses. A 19 year old who consensually sleeps with his 16-year old girlfriend can merit sympathy and might be an argument we can win, but we should be hard line about people who violate others’ rights in a manner so grave, be they from the government or not.

      Libertarians have absolutely nothing to gain by defending politically popular actions. Some people will consider you a nutjob no matter what views you hold. If someone wants to consider me a nutjob for defending deeply held principles that are politically unpopular, go ahead. I’m not going to let their beliefs based on wrongheaded principles stop me from defending what I think are better principles that would, if followed rigorously, result in a better society.

      1. a.) I thought my comment here indicated that there needs to be a little breathing room but that there needs to be different sets of standards for someone who accidentally crosses images or video of teenagers engaged in consensual acts, one who actively seeks out underage teen porn – and one actively seeking out porn involving the rape of children and pre-teens. Thus the difference between 16 and 15 and 355 days is splitting hairs when I wasn’t really engaging in that argument.

        b.) Your analogy was far more of a fail – a photograph of a stolen car would be more like viewing a photograph of a fully clothed child who was molested in the past. Even making child porn morally equivalent to a graphic crime cam video shown on the evening news would not be a strong analogy because the entertainment value of the documentation is the basis for the commission of the crime, not vice versa. Even though their participation is after the fact and secondary, viewers of child porn are still to some degree complicit in the commission of the crime by creating a market for actively documenting the rape of children.

        c.) I wasn’t “arguing for a thoughtcrime” – motive is an aspect of sentencing already (albeit not in the determination of guilt), as it should be.

        d.) Agree with you here. It is wrong, but then again, sentencing should be up to juries (not based upon mandatory minimums)

        e.) What I’m doing is questioning your principles – isn’t the violation of individual rights equally problematic whether it is committed by government or by an individual? In this specific case, there is a rational basis for the opinion of the majority based in the concept of individual rights, and child porn is the tacit endorsement of the violation of individual rights. Libertarianism is NOT a consistent philosophy because there are always conflicts of individual rights, so libertarians have to choose sides in many circumstances. In the case of child porn, the victim’s rights should prevail.

      2. And comparing watching a video of someone just shy of her 18th birthday having consensual sex, with watching a snuff film, is a huge analogy fail.

        So by narrowing it down to only things that probably 90% of people wouldn’t even remotely consider to be child porn – and that sure as hell shouldn’t be considered as such for any form of prosecution in a just world – are you implicitly agreeing to his analogy in the case of actual child porn of actual young children being raped by adults? Yes or no?

    2. Libertarians have absolutely nothing to gain from defending child molesters and child porn viewers. From a purely political perspective, this is why libertarians look like nutjobs.

      Yep! I’ve voted LP for nearly two decades now and have run twice for office under the LP banner. I’m an LP committeeman at present. I can attest personally as to the degree to which stances like this poison our efforts.

      1. And supporting the legalization of all controlled substances doesn’t?

        1. Tacos mmm…
          Depends on the way in which you approach legalization of all controlled substances. The historical straw man was that “libertarians would put heroin vending machines in preschools” – exactly the image that people who seriously supported legalization would wish to avoid if they seriously wanted to accomplish their goals in a political forum. Most practical libertarians would say “let’s legalize pot first and then when society doesn’t collapse, we can garner enough support to carefully legalize the rest via distribution through licensed pharmacies and focus strongly on addiction treatment.” But yeah, advocating for the legalization of heroin the day after he gets elected is unlikely to win a libertarian politician many votes, thus would actually be counterproductive to expanding liberty by keeping opponents of such in power.

          1. I was simply giving an example of another stance that poisions libertarian efforts to get into office; even legalization of marijuana has been enough to do so in most cases. I agree that pragmatism is necessary, but at a certain point, you compromise so much that you’re no different from the mainstream parties.

            I don’t think that legalization of child pornography should be a plank in anyone’s platform right now, but as the internet continues to expand, I foresee it becoming an interesting problem for the legal system, as it can easily be wielded as a devestating electronic weapon.

    3. A rape is amongst the biggest violations of individual rights, and libertarians should be all for a harsh crackdown on such actions. Personally, I would put a real child molester who commits an act of rape (and maybe any other rapist as well) away for life – an act like this can destroy a person’s life and statistics have sadly also shown that the molested are more likely to eventually become molesters – child molestors should therefore get no chance to commit repeat offenses.

      There was an article on Reason a few years ago by someone who has actually made a scientific study of child molestation, and it turns out that violence is involved in less than 10% of cases. The vast majority of the time, the activities are not considered injurous or even significant by the children themselves, and are usually forgotten.

      Children don’t place the give the significance sexual activity that adults do.

      1. Actual violence may be involved in only 10% of cases, but that does not mean there is not a serious initiation of force and violation of individual rights in most cases. In far more cases, there is the likely threat of violence or some form of blackmail; furthermore, we would need to discount consensual statutory cases of ephebophilia (middle-aged teens just under the age of consent) within some reasonable boundaries in order to truly analyze the correlation between violence and pedophilia.

        How an individual reacts to a violation of their rights diminishes neither the gravity of the fact that rights were violated, nor the necessity for government to punish the violator.

        1. How an individual reacts to a violation of their rights diminishes neither the gravity of the fact that rights were violated, nor the necessity for government to punish the violator.

          Again, you’re looking at it like an adult. Children have things done to them and their bodies all the time without their consent; things that you would be legitimately upset about if they were done involuntarily to you as an adult.

          For example, if I held you down, and gave you an injection to you arm as you screamed in terror, that would be a violent offense against your person. Likewise, confining you to a closed room. Or smacking you repeatedly on the ass with a belt.

          It’s a part of being a child that you don’t have complete control over your own body, and therefore violations that would seem offensive to an adult are simply not seen as such by children.

  14. rather than a set of demagogues using public antipathy for pedophiles to score political points.

    Substitute something else for “pedophiles” (jaywalkers, animal fighting, selling raw milk or bacon dogs, etc.), and you’ve described the default process for lawmaking.

    1. Much of society’s antipathy for pedophiles is based in the fact that pedophiles often get light sentences for acts that destroy peoples’ lives and they end up back in our communities with a high recidivism rate. Again, I distinguish between real pedophiles and consensual statutory criminals (i.e. the 19-yo and his girlfriend nearing the age of consent). Violent rapists deserve no mercy (even rapists of adults) and libertarians should NOT show them any, because we should not tolerate any individual or organization who violates the most fundamental rights of others.

      1. whoa whoa whoa, convicted pedophiles have the lowest recidivism rate.

        1. If by “lowest” you mean a 30-40% chance of re-offense within 30 years after release (and this is conservative, as it does not count the cases that aren’t discovered and cases where a conviction is not reached)…

          http://www.leadershipcouncil.org/1/res/rcd.html

  15. “The tricky part of enforcing child porn laws is the fact that the viewers might be motivated by some sick perversity, but some might also just be morbidly curious to see one of the most atrocious acts possible.”

    Unless you’re motivated by thoughtcrime or precrime considerations, the motive here should be irrelevant. Mens rea is the same in both cases you described. (And certainly, both are a form of personal satisfaction gained at another’s expense).

    Arguing “motive” might be relevant when someone asserts that they were seeking out adult pornography (or no pornography at all) and accidentally found child pornography — it is certainly a crime that can be accidentally committed with no malice (or perversion) aforethought. But that argument didn’t fly for Actaeon, so good luck.

    1. Motive is not a factor in the determination of guilt (and it should not be – that would be a thoughtcrime), but it is and should be a factor in the sentencing.

      1. It’s a matter of motive vs. intent. Accidentally stumbling onto something should not be a crime, but if you’re intentionally supporting child molesters, it shouldn’t matter why.

  16. I doubt that any but a tiny handful of sociopaths types do not see the sexual abuse of children as a horrendous thing. I also don’t doubt that the vast majority of people find child porn utterly repellent and horrifying, but I can not grasp why mere possession of such material alone should be a crime – this independent of facilitating its production. Why would it not also be a crime to possess depictions of, say, children who have been disemboweled or decapitated in war or in a car crash or “merely” murdered without having been sexually abused? Those later things are not crimes, correct? Suppose a person were such a wretched creature that he/she found sexual stimulation from such images??? Would it be a crime then? You can find video and images of horrendous things like that all over the internet. Why are these things less offensive than depictions of sexual exploitation of a child?

    Let’s really be honest. A large part of what makes the later type of images more acceptable than those depiction child sex abuse involves the hysteria over sex. Would I want someone who is a fan of child porn living next to me??? Of course not. Likewise, I wouldn’t want someone who enjoys watching videos of people having their heads cut off or of animals being tortured living next to me. But in a free society the only activity that should actually be considered a crime should be an activity that actually involves harming another person. If you molest a child, if you facilitate the abuse of a child, yes, those should be crimes. It should not be a crime to be a pervert with desires that I may find repulsive. We are in the area here of “pre-crime” and thought crimes. A very dangerous area to be in.

    1. Not bingo. As I pointed out above, the difference is that child porn is created solely because of the entertainment value it brings to viewers – thus the existence of the market is the basis for the commission of child rape. Without a market, there would be little incentive to film and distribute the act of rape, thus far less incentive to commit the rape in the first place. As I mentioned, snuff films would be in the same boat, as would for-real rape videos of adults.

      If you are sexually stimulated by a photograph of a murdered child, that is your own perversity and misappropriation of the point of an image – the image was not created with the intention of sexually stimulating or bringing entertainment to you, and the child was not killed for the purpose of taking such a photograph for your entertainment. Generally such photographs are taken by journalists to document a tragedy and raise awareness of an issue. “Getting off” on it sexually would likely be unprovable, as would getting off on pictures of clothed adolescent beauty queens or a photo of a young boy at a swimming pool. It’s still wrong and disgusting, but would be difficult to make into any sort of provable crime without delving into thoughtcrime.

      My argument is that child porn is not a thoughtcrime, because everyone viewing porn is already aware that the purpose of that porn is for stimulation and entertainment, so motive is not the crime so much as implicitly participating in and condoning the violation of an individual’s rights by providing a market for the commission of these crimes. Without the market for such entertainment, the crimes would not happen. Moreover, the victims still deserve protections of their rights even after the fact, and the illegal distribution of them being sexually assaulted not only violates their right to privacy but puts them at some level of risk for repeated violations if they are somehow recognized by a viewer.

      1. As I pointed out above, the difference is that child porn is created solely because of the entertainment value it brings to viewers – thus the existence of the market is the basis for the commission of child rape.

        This may be true in some circumstances where there is some commercial aspect to the production (as in eastern Europe or Asia), but in most cases the images are documentation of an activity that would occur anyway. The purpose of the images are usually for the gratification of the person doing the abusing; they are then traded over the internet through informal networks with people who are participating in the same activities, and then eventually escape through file sharing networks to the internet at large.

        In other words, it’s one guy trading pics of his daughter getting diddled for another guy’s pics of his neice getting diddled. You’re not really protecting anyone, because these activities would be occurring anyway, and you may be preventing the victims from being rescued through recognition.

        1. Why is the person diddling his daughter/niece taking pictures? Is it because he likes diddling his daughter/niece, or is it because he likes looking at pictures of another guy diddling his daughter/niece? Ditto for the guy on the other end of the transaction.

          What we have here is mutually-reinforcing criminal activity with real, live victims and “libertarians” saying it’s just fine.

          Sorry, but if I have to defend kiddie porn to remain a libertarian, I’m outta here.

          1. I don’t think anyone is defending kiddie porn. I think what we’re saying is the crime is harming the child, not documenting the evidence of the crime. Even if, and I highly doubt this to be the case, the purpose of harming the child was to watch someone else do the same to another child, that would be a motive for the crime. Not a crime by itself. Should the government be in the business of restricting any activity that they think someone could use as a motive to commit a crime?

            1. If the motivation is closely coupled to the crime itself, yes. Or is fencing stolen property okay with you, too?

              1. Hey, it’s good enough for Walter Block (IIRC).

                A good argument can be made for making trade in known-to-be-stolen goods legal. True, it increases the incentive for stealing. However, it also allows goods to flow to their highest valued uses instead of being stuck in legal limbo.

                I always point out this one, and people just say “that’s different”, as if it were self-evident as to why it should be different: stolen money, or other fungible goods. Nobody thinks it should be illegal to trade in stolen money or commodities that are not individually identifiable. Well, I’m sorry, but for most stolen goods, although theoretically their rightful owners could be identified, practically speaking, that ain’t happening, so why should they be locked off the market? And why, in the rare event that someone can identify a stolen item as belonging to hir, should that ownership still be enforceable, as opposed to the numerous good-faith transactions that could have interceded?

          2. Why is the person diddling his daughter/niece taking pictures? Is it because he likes diddling his daughter/niece, or is it because he likes looking at pictures of another guy diddling his daughter/niece?

            Why do people film themselves having sex? Presumably to relive the experience at a later point. This is beside the point, however, which was that the production of child pornography is not in most cases consumer driven.

            What we have here is mutually-reinforcing criminal activity with real, live victims and “libertarians” saying it’s just fine.

            It may begin as mutually reinforcing criminal activity, but once it enters the net, it spreads well beyond those spheres and becomes incidental. Most people possessing child pornography have no discernable connection to its production. The degree to which they are pursued by law enforcement is greatly out of proportion to the degree to which they pose a threat.

            Sorry, but if I have to defend kiddie porn to remain a libertarian, I’m outta here.

            Just because something is disgusting or even morally wrong doesn’t mean it should be illegal. I think that in most cases, one can split possession from production/soliciation.

            1. Just because something is disgusting or even morally wrong doesn’t mean it should be illegal. I think that in most cases, one can split possession from production/soliciation.

              I guess we’re going to have to agree to disagree on this one. I see definite and specific harm being done here, and thus think it ought to be illegal.

      2. My argument is that child porn is not a thoughtcrime, because everyone viewing porn is already aware that the purpose of that porn is for stimulation and entertainment

        Pornography is notoriously tricky to define well.

      3. I really don’t think child abuse is happening because of any entertainment value. It is not driven by the “demand”. The people who engaged in these crimes against children do so because they are sick fucks! They’re not doing this shit just to make money. Now, if they can make a profit doing what they love to do then they will. But to suggest the profit motive is making people commit the crime is just silly.

        The crime is not the video-taping or the proliferation, but the actual abuse done to the child. The only thing a video does is that it documents it. That just makes it easier to track down the offender.

      4. getting off on pictures of clothed adolescent beauty queens or a photo of a young boy at a swimming pool. It’s still wrong and disgusting,

        Why?

  17. But there is no public antipathy to selling raw milk or bacon dogs.

  18. I guess I can liken this to the idiot kids who videotape themselves smashing mailboxes.

    The smashing mailboxes was a crime, but not the videotaping of it.
    When they post this on the net would it lead to more kids smashing mailboxes? I doubt it. Would it lead to more kids videotaping themselves smashing mailboxes? Probably. But that just makes more evidence to show who committed the crime.

  19. How would the issue change if instead of photos, these were live performances? Someone takes the kids outside and has them perform to draw a crowd. OK, so the promoter is guilty, but are any of the onlookers? Are onlookers guilty only if when the kids pass the hat between or after acts, they chip in?

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