Pornography

For Looking at Child Porn, a Judge Imposes a Sentence of Days Rather Than Years

Jack Weinstein concludes that the penalty recommended by federal sentencing guidelines is far too severe.

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NYU Law School

Jack Weinstein, a federal judge in New York City who for years has criticized penalties for people caught with child pornography as excessively rigid and harsh, was recently called upon to sentence a man who had pleaded guilty to possessing two dozen photos and videos. The federal sentencing guidelines recommended a prison term of six-and-a-half to eight years. Instead Weinstein sentenced the defendant—identified by his initials, R.V.—to time served (five days), a fine, and seven years of supervised release.

"The applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants' families and the community, and the needless destruction of defendants' lives," Weinstein wrote in a 98-page explanation of his reasons for departing so dramatically from the guidelines. "Removing R.V. from his family will not further the interests of justice; it will cause serious harm to his young children by depriving them of a loving father and role model, and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

R.V., a 53-year-old father of five who lost his job as a restaurant manager after he was arrested, told NBC News he came across the images that led to his arrest while looking at adult pornography. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading." He added that "I feel very remorseful," and "it's something that will never happen again." NBC reports that "the man also had 'sexual' chats with underage girls online, but there was no evidence he sought physical contact with minors." A psychiatrist testified that R.V. does not pose a threat to his own kids or other children.

Unlike other child pornography cases in which Weinstein has resisted imposing draconian sentences, this one does not involve a mandatory minimum. Had R.V. been convicted of receiving child pornography rather than mere possession (essentially the same offense, since downloading an image counts as receiving it), Weinstein would have had no choice but to impose a five-year sentence. But since the federal sentencing guidelines are merely advisory, Weinstein was not bound by them in sentencing R.V., although prosecutors can still challenge his sentence as an unreasonable departure from the recommended range.

University of Utah law professor Paul Cassell, a former federal judge who agrees that at least some child pornography sentences (such as life for mere possession) are excessive, thinks Weinstein gives short shrift to the injury caused by looking at images of sexually abused children. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images," Cassell told NBC News. "It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives."

Granted that knowing those images are out there causes distress, the damage done by one additional download is hard to pin down. Furthermore, invasions of privacy are traditionally treated as torts rather than crimes. It is hard to think of another situation in which someone could get up to 20 years in prison (the maximum for possession of child pornography under federal law) for invading someone's privacy, no matter how humiliating and painful the consequences.

Cassell also argues that "the viewing has a market-creation effect" and "ends up leading inexorably to the rape of children." Here, too, the contribution of one additional viewer seems negligible, especially because people who look at child pornography nowadays almost always obtain it online for free. If R.V. did not pay for these images, let alone commission them, it is hard to see how his viewing of them encouraged the production of more.

Even if you agree that looking at certain pictures inflicts a real injury and should be treated as a crime, the penalties recommended by the guidelines (which were boosted at the direction of Congress) seem utterly disproportionate, especially when compared to the penalties for violent crimes. In New York, for example, you could kill someone and still get out of prison sooner than R.V. would have under the guideline sentence. Someone who actually rapes a child could get a shorter sentence than the federal guidelines recommend for looking a pictures of someone raping a child.

Weinstein is not alone in viewing the recommended sentences for child pornography offenses that do not involve production as excessive. A few years ago, the Associated Press reported that "federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes." In a 2009 critique of the guidelines for child pornography offenses, federal public defender Troy Stabenow noted that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. The comparison, Stabenow wrote, "demonstrates the absurdity of the system."

[via Notes From the Handbasket]

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  1. “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” – You know who

    1. Ok, I am pretty sure the answer is NOT Hitler?

      1. Actually, she was probably paraphrasing him so don’t be so sure.

  2. I read that as “a sentence of Dan Rather…..”. Which, by definition, is cruel and unusual.

  3. Paul Cassell is a piece of shit.

    1. Dang it.

      What I meant to say was: Paul Cassell is a giant, stinking, nasty piece of shit.

  4. “I just got caught up in it,” he said. “It’s not like I woke up and said, ‘Listen, let me look at this stuff.’ It kept popping up every time I was downloading.” He added that “I feel very remorseful,” and “it’s something that will never happen again.” NBC reports that “the man also had ‘sexual’ chats with underage girls online, but there was no evidence he sought physical contact with minors.” A psychiatrist testified that R.V. does not pose a threat to his own kids or other children.

    I think a correct judgement since he didn’t actually hurt anyone but fuck this guy. He’s using the same excuse all pedophiles use.

    1. I’m pretty sure you don’t “accidentally” download child porn from pornhub and then seek out chat rooms full of 14 year old girls.

    2. “It kept popping up every time I was downloading”

      I have a suggestion. Download somewhere else.

  5. What’s the judge’a stance on the accidental burning of federal land?

    1. I dunno but I bet the prosecution likes the idea of appealing the sentence and sending J.V. back to prison after he completes his sentence and is released.

  6. Had R.V. been convicted of receiving child pornography…

    So if you click a link and it sends you to a page with pictures on it that you did not intentionally seek out, you have still received child porn and are now a criminal?

    1. Pretty slick, huh? Your machine might even pick up a virus, too!

    2. I suspect no one will notice until you start flirting with underage girls.

  7. The question of the actual harmfulness of “child porn” is still far from resolved, and is the subject of ongoing debates in the psychology/social sciences community and in scientific journals.

    Scientific studies based on credible empirical evidence do not support the mass hysteria and moral panic that currently surrounds so-called “child pornography.” According to several objective research reports, some of which are discussed in the essay linked below, the viewing of this material is most often harmless and does not always lead to behaviors which are currently considered to be criminal. Many ? perhaps most – of those charged with possessing and viewing “child pornography” have never been involved with a child. Also, the conjecture that all “pornography” is taken without consent is not borne out by empirical facts, and the delusion that children are hurt every time their image is viewed simply is not rational ? the child most likely never knows about such viewings. For an essay discussing this subject published in a reputable scientific journal, see http://www.shfri.net/effects/effects.cgi

    For a free downloadable 94 page book on these issues which includes voluntary anonymous testimony from now grown former child “actors,” see http://www.shfri.net/shfp/beyond/beyond.html

    1. But to be informed on this subject, wouldn’t we have to be shown images of the type in question? Wouldn’t we then be criminals ourselves? But how else could we tell which types of images are alleged to be harmful, & what features distinguish them from those which aren’t?

      1. That’s definitely one of the things they play with to make it all sound like it’s horrible images of children being violently tortured and raped in front of a camera. While I disagree with the above poster that the children participate willingly, they are also most often not physically harmed or coerced by force, and in many cases they are enjoying the sexual activities, because, well, sex is pleasurable after all. However that doesn’t mean they’re OK, since they’re children who lack the maturity to fully understand the implications of all that’s going on (not just the sex but the notion of it being recorded and distributed widely to the world). An act of sexual abuse doesn’t necessarily have to be what we commonly understand by rape. Children can be “willing” but their consent is meaningless because even if not directly forced or threatened they are most often unconsciously coerced by the trusting adult that asks them to do those kinds of things and even if they enjoy it at the moment they never would have done it out of their own free will if not influenced by an adult, so it’s child sexual abuse all the same.

        But it’s important to understand and acknowledge the difference: the idea that pedophiles get off on the suffering of innocent children screaming and crying while they’re brutally raped is simply ridiculous. It only serves to paint all pedophiles (even those who would never touch an actual child) as sadistic monsters in hopes to further dehumanize and stigmatize us.

      2. DISCLAIMER: I am a non-offending and anti-contact pedophile, meaning that I am sexually attracted to children but I have never touched a child sexually and I am committed to never doing so because I acknowledge that doing so is wrong and would cause harm to children. I also do not use nor condone the use (let alone the production) of child pornography where real children are abused and thus harmed to produce it.

    2. While I fully agree that viewing child pornography has no demonstrable effect on an individual’s likelihood to commit a contact offense (mainly because there is no scientific research that supports that idea, and in fact quite the contrary), the notion that children are always (or even in a high percentage of case) “willing” participants of sexually-explicit pornography that is widely distributed over the internet (especially when it depicts sexual acts with adults) is beyond ridiculous, or outright laughable. In addition, your “essay” is a load of poppycock that has no scientific backing, is not peer-reviewed and people should probably know is hosted on a website that openly supports adult-child sexual relationships and advocates for “responsible boylove” (http://www.shfri.net/philos.cgi) (and it’s the only place on the internet where you will find it). David L. Reigel, the supposed “scientist” and author of this “essay” and book (and main author of the page that hosts it) is often mocked and derided even by fellow pedophiles in online pedophile support communities.

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