Child Porn Sentencing
The Oregon Supreme Court has granted review to a case involving child porn sentencing. The issue is this: how many different criminal episodes are there when multiple images are found during a single search, but those images were obtained on different dates?
I won't reiterate the arguments here, but it's my case, so if anyone wants the briefs after they're filed, let me know.
If the defense wins, the impact could be that a defendant who is an "I" would stay an "I" for all counts. While much better than being an "A" after just a few counts, are there any other limitations that could dramatically shorten the sentence?
Yes. If the state can't prove separate victims, the 200% rule would kick in, and the defendant's likely sentence would be no more than 36 months.
But what if the images all involve separate children? My argument -- which I have written about before -- is that the burden is on the state to show that the people depicted in the images are still alive at the time of downloading by the defendant, because if they aren't, they are beyond all harm, and thus cannot be victims (in the same way you can't libel the dead).
The state's response, shared by some defense attorneys, is that when you download the images ten, twenty or even a hundred years later, you -- as a consumer of these images -- are the reason these images were created in the first place, thus you are complicit in the original abuse. Consequently, it is the harm from the original abuse that makes the children "victims" for all eternity, even if the porn people look at five hundred years from now is the same porn that exists today.
I think this is wrong because I don't think the law recognizes retroactivity in this type of culpability. Space/time certainly doesn't. But there is another key reason, and when I say it, you're going to be shocked, but read on, and you'll see I'm not promoting an argument that only a psychopath would make.
The reason a defendant isn't culpable for the original abuse years earlier is that the child might not have been a victim of abuse in the first place.
Wait, wait, don't stop reading! I'm not encouraging child sexual abuse. Rather, I'm pointing out the simple fact that the sexualized images, in some cases, might have been taken by the victim herself. Here are some examples of exactly that: here is a case of a teen facing felony charges for having nude pictures of himself on his cell phone and here is one where a 17 year old is convicted of distributing child porn of himself.
And what about where a 17 year old is videotaped having sex legally because the age of consent in that state is 16? As I wrote awhile back:
In State v. Reeves (2012), the state argued:
- The state argues, nevertheless, that nonmerger with respect to some, and perhaps all, of the counts can be independently justified under ORS 161.067(2). In that regard, the state posits that "[t]he children depicted in child pornography are victims both of the underlying sexual abuse and of the possession and distribution of the resulting child pornography." (Emphasis in original.) The state further posits that, "'because such activities, by their very nature, are abusive to children, it follows that a violation' [of ORS 163.684] necessarily involves material 'that is directly and inextricably connected with sexual abuse of children.'" (Quoting State v. Stoneman, 323 Or 536, 541, 920 P2d 535 14(1996).)
The Reeves Court "agree[d] with the state."
The claim that child porn necessarily was a product of abuse should have been treated by the court with more skepticism even then. It's not as though the ubiquity of smartphones, the sexual and short-sighted nature of teenagers or the concepts of sexting were unknown in 2012. Nevertheless, what the court did not recognize then should be obvious now, as demonstrated by the teenager who nearly ended up a registered sex offender for possessing nude pictures of himself. Under Oregon law, he'd be both sex offender and victim. Given, furthermore, that in most states, the age of consent is under 18, a 16 or 17 year old can legally have intercourse but could go to prison for taking pictures of it.
I have previously written about the problem with identifying the child as a victim. The same porn people look at now they'll be looking at 100 years from now, when the people in the images have likely passed away. Are they still victims, for all eternity, every time someone downloads the picture? If we had child porn of Abraham Lincoln, is he still a victim when someone passes it along? The longstanding principal has been that a dead person is beyond all harm. But the impulse to label someone a victim, and all the benefits that entails, is pretty strong.
Reeves II dodged the issue of whether dead people could be victims of ECSA. Hopefully someone will preserve the issue and get it back up to the appellate courts.