Pornography

Pornography

First, the production and/or sale of child pornography was banned. Then, its distribution (for free) was prohibited. Next, its mere possession was outlawed. Finally -- and most recently -- just viewing it was criminalized. But, what -- exactly -- is child pornography? And what are the ramifications of defining it in ever broader terms, as well as, punishing non-production child pornography offenses as -- or even more -- severely than actual, 'hand-on' sexual activities with minors?

At the outset, it should be noted that the late U.S. Senator Jesse Helms was one of the principal architects of the federal child pornography laws which are still in effect today. Notorious for his rabid hatred of homosexuals, he was also well-known for crusading against federal funding for 'objectionable' art.

U.S. v. Dorvee , 604 F.3d 84 (2nd Cir. 2010)

[87] "Justin K. Dorvee pled guilty to one count of distribution of child pornography."

[97] "The irrationality in [the federal sentencing guidelines in tis area] is easily illustrated by two examples. Had Dorvee actually engaged in sexual conduct with a minor, his applicable Guidelines range would have been considerably lower. An adult who intentionally seeks out and contacts a twelve-year-old on the Internet, convinces the child to meet and cross state lines for the meeting, and even engages in repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines range of 151 to 188 months [12.6-15.7 years] in prison for an offender with a criminal history category of 1. Dorvee, who had never had any contact with any actual minor, was sentenced by the district court to 233 months [15.5 years] of incarceration. What is highly ironic is that the district court justified its 233-month sentence based on its fear that Dorvee would sexually assault a child in the future." [Emphasis original.]

A14 [923] "Pedophiles have emerged as the new communists in our popular imagination. Many scholars have contended that anxiety over child pornography fills the gap left open by the fall of communism. Pedophilia allows us to 'locate...a demon, a [924] creature harder to find since the collapse of the "evil empire".' [James R. Kincaid. Erotic Innocence: The Culture of Child Molesting 12 (1998)] As one critic notes: 'Pedophilia is the new evil of domestic imagination: now that communism has been defanged, it seems to occupy a similar metaphysical status as the evil of all evils. . .' [Laura Kipnis, Bound and Gagged 5 (1996).] Scholars have frequently compared our obsession with child sex abuse to McCarthyism. (Some, in a more historic vein, have drawn parallels with the Salem witch hunts.) Just as in McCarthyism, when 'concern with domestic subversion began to dominate American life,' [Harry Kalven, Jr., A Worthy Tradition 187 (1988)] so the problem of children's sexual vulnerability 'now structures our culture.' [Kincaid, supra, at 14] As I will document below, the nation has declared a new 'war' -- on child sexual abuse -- and this battle defines our era. [FN14:] 'We are all implicated in a contemporary discourse on children, sexuality, and assault so mighty that it comes close to defining our moment.' Id. at 5-6."

[925[ "As both the definition of 'child pornography' and the rationales for banning it have expanded, they have mutually undermined one another. These twin developments have had a synergistic effect: the result is that chid pornography law has drifted quite far from its original purpose -- to protect children from sexual abuse. In doing so, child pornography law has introduced into the First Amendment a radical view of [926] speech -- how it works and why we restrict it. We are so horrified by the crime of child pornography that, to combat it, we have inverted the First Amendment, disrupting established categories and assumptions. Child pornography law...has widespread implications for all of free speech.

"In its early struggles over the meaning of the First Amendment, the [U.S. Supreme] Court ultimately rejected the notion that speech could be banned because it might provoke dangerous ideas. Child pornography law, however, has begun to reverse this tradition. As I will show, child pornography law has begun to allow for the categorization and regulation of speech based on how people might respond to it. It has come to permit the government to police the realm of fantasy, a realm supposedly protected under the modern First Amendment.

"These developments in child pornography law have subverted traditional First Amendment principles that separate speech from conduct."

[936] "Congress, prosecutors, and the courts have rushed into the battle. In fact, it seems at times as if they have been striving to outdo one another in being tough on child pornography, as if the interplay between legislatures, prosecutors, and courts were a contest in moral outrage."

"[S]ince it first declared in the 1982 case of New York v. Ferber that child pornography was a category of speech unprotected by the First Amendment, the Court has never attempted to define 'child pornography' itself."

[946] "The problem began in Ferber when the Supreme Court approved the statutory definition of child 'sexual conduct' that included not only obvious sexual acts...but also 'lewd exhibition of the genitals.'...But what does 'lewd [947] exhibition of the genitals' mean? How does it differ from an 'innocuous' photograph of a naked child -- a family photograph of a child taking a bath, or an artistic masterpiece portraying a nude child model? As I will explain below, it is at this margin of child pornography law, where its prohibitions threaten 'innocent' speech, that the law poses the most significant danger of overbreadth and its resultant chill. It is also where the law bears the least connection to its foundational rationale. And yet, it is in this haziest realm that the definition of 'child pornography' has grown.

"If we pushed the case law to the extreme, it seems to threaten all pictures of unclothed children, whether 'lewd' or not, or even pictures of clothed children, if they meet the increasingly hazy definition of 'lascivious' or lewd.'"

[952] "If nudity is no longer a requirement under the child pornography laws, then it seems that a great deal turns on the meaning of the word 'lascivious.'"

[953] "The leading case on the meaning of 'lascivious exhibition' is United States v. Dost, a California district court case that announced a six-part test for analyzing pictures. The test was affirmed in a Ninth Circuit decision. Virtually all lower courts that have addressed the issue have embraced the so-called 'Dost test.' The test identifies six factors that are relevant to the determination of whether a picture constitutes 'lascivious exhibition':

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive; i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

"In my judgment, the Dost test has produced a profoundly incoherent body of case law."

[from FN146:] "The subjectivity in the second factor of the test, which probes whether the setting is 'sexually suggestive,' was demonstrated in a recent First Circuit case. See Amirault, 173 F.3d at 33...There, the court rejected the government's rather startling assertion that the setting of photographs of children on a beach was sexually suggestive because 'many honeymoons are planned around beach locations.' Id."

[955] "Application of the Dost test thus requires an inquiry into the intended effect of the material on an audience of pedophiles."

[956] "In fact, it is arguable that when viewed from the perspective of pedophiles, all children could be erotic."

[957] "[T]he test for child pornography has become divorced from the rationale for banning it. The question of whether a photograph appeals to a pedophile often bears no relationship to the conditions under which it was produced or to the experience of the child subject."

[991] "Individual fantasy is beyond the reach of the law; it follows from [992] this principle that the power of speech to change or construct society more broadly is an impermissible basis for regulation. We expect speech to change society. It is because speech has such power that it occupies a central role in our vision of democracy."

[995] "Child pornography has become a thought crime. Quite simply, we do not like the way people think about certain pictures of children. This is evident in the ever-expanding definition of 'lascivious exhibition of the genitals' and the attempt of courts and legislatures...to police pictures that appeal to the sexual fantasies of pedophiles, regardless of how those pictures were produced.

"The law demands that we examine pictures to determine how a pedophile would see them; we then criminalize these pictures, or not, depending on that viewpoint.

"But since our interpretation depends on the pedophile's imagined response to the picture, we have begun to police thoughts and fantasy, not actions. The harm of the pictures no longer turns on what happened to the child. It now occurs in the possibility of seeing a picture in a certain way, in how someone might perceive the child. The determination of whether a picture is child pornography has grown increasingly bound up in our projections of whether these pictures will permit pedophiles to fantasize about them. Thus, our child pornography law has begun to police speech based on how people may respond to it. This is in direct contravention of traditional First Amendment tests."

[998] "The reasons proffered for prohibiting virtual child pornography [i.e., that produced without photographing actual children] are strikingly similar to those given by [prominent feminist theorist Catherine] MacKinnon in support of her proposal to regulate adult pornography. First, just as Congress worried that child pornography makes us 'perceive children as sexual objects,' so MacKinnon argued that pornography should be unprotected because it makes us perceive all women as sexual objects. Second, Congress's concern for our societal desensitization to child pornography seems taken directly from MacKinnon's work as well.

"Despite the troubling failure of MacKinnon's theory on both a constitutional as well as a linguistic level, child pornography law has begun to follow the path that she has paved. The inexorable direction of child pornography law is toward policing fantasy. In varying and subtle ways, the law has begun to prohibit the targeted speech because of its effects on viewers.

"Some have argued that the CPPA [Child Pornography Prevention Act] is unconstitutional under existing interpretations of First Amendment law. If it is, as I believe it [999] is * , then it is not a sudden unconstitutional shift in child pornography law. Rather it is a culmination of a subtle and inexorable erosion of free speech principles that has been ongoing in child pornography law since its inception."

[ * This author (Amy Adler) turned out to be quite prescient. In 2003 (just two years after this article was penned), the U.S. Supreme Court struck down a key component of the CPPA, which prohibited even 'virtual' child pornography; that is, pornography which was created totally artificially/digitally, without the use of any actual children. The angry reaction to this on the part of then-Attorney General John Ashcroft (and others) would seem to suggest that the true motive behind banning such material is not the protection of actual children, but rather, the safeguarding of a certain ideology.]

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However, the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"The Perverse Law of Child Pornography" (also by Amy Adler)

A6 [212] "I suggest that child pornography law and the eroticization of children exist in a dialectic of transgression and taboo: The dramatic expansion of child pornography law may have unwittingly heightened pedophilic desire."

[213] "The legal discourse on prohibiting child pornography may represent yet another way in which our culture drenches itself in sexualized children.

"Child pornography law explicitly requires us to take on the gaze of the pedophile in order to root out pictures of children that harbor secret pedophilic appeal. The growth of child pornography law has opened up a whole arena for the elaborate exploration of children as sexual creatures. Cases require courts to engage in long, detailed analyses of the 'sexual coyness' or playfulness of children, and their potential to arouse. Courts have undertaken Talmudic discussions of the meaning of the 'pubic area' and 'discernibility' of a child's genitals in a picture at issue. But when a child is pictured as a sexual victim rather than a sexual siren, the child is still pictured as sexual. Child pornography law becomes in this view a vast realm of discourse in which the image of the child as sexual is preserved and multiplied."

[238] "Since [New York v.] Ferber [1982], federal courts, so disquieted by the dangers of child sexual abuse, have tolerated statutes that define child pornography in increasingly broad and subjective terms."

[240] "If we pushed the definition in the evolving case law to the extreme, it seems to threaten all pictures of unclothed children, whether lewd or not, and even pictures of clothed children, if they meet the hazy definition of 'lascivious' or 'lewd.'"

[243] "In Osborne v. Ohio, the [U.S. Supreme] Court extended the reach of child pornography law in its decision to uphold the criminalization of mere possession as opposed to distribution or production of child pornography."

[245] "Inherent in all regulation, but particularly in regulation of sexual desire, there is the possibility that legal taboos will invite their own violation. The desire to transgress a prohibition, indeed the thrill of transgression for its own sake, is a familiar story. In fact it is a foundational one. The most basic myths of western culture tell of contravening prohibitions: Think of Adam and Eve, or Prometheus, or Psyche."

[247] "Chaucer's Wife of Bath [in the Canterbury Tales] is more to the point. She said [in middle English], 'Forbyde us thinge, and that desiren we.'"

[248] "As Freud observed, 'desire is mentally increased by frustration of it.' In psychoanalytic theory, prohibition curiously preserves rather than obliterates the desire it suppresses. In fact, the pleasure of repeating and observing a prohibition may come to replace the satisfaction of violating it: the enforcement of the prohibition is an occasion for the reliving of the prohibited desire, made all the more pleasurable because it is relived under the veil of condemnation. (Many have observed the salaciousness of the censor; the leering, suggestive ebullience that can accompany a vigorous censorship campaign.) In this way, prohibition and desire depend on one another. As Judith Butler writes, 'The prohibition does not seek the obliteration of prohibited desire; on the contrary, prohibition pursues the reproduction of prohibited desire and becomes itself intensified through the renunciation it effects. . .[T]he prohibition not only sustains, but is sustained by, the desire that it forces into renunciation.'

"This theory has unpleasant implications when considered in the context of our cultural preoccupation with child molestation. It would suggest that the heightened anxiety about child sexual abuse is closely related to repressed pedophilic desire."

[249] "The appeal of the taboo holds special force in sex according to Freud because our sexuality is founded in taboo -- the frustrated incestuous desire that children feel for their parents. Sexual prohibitions exert a special hold on us because they allow us unconsciously to revisit our forbidden oedipal longings. To exploit its pleasures to the fullest, we need to experience sexuality as forbidden."

[250] "If prohibition produces or escalates desire in the realm of sexuality generally, is there anything about child pornography that would make it particularly vulnerable to this perverse dynamic? Sociological literature suggests the answer is yes: The social climate of anguish over child sexual abuse, and the expanding laws of child pornography that [251] express and reflect this anguish, have made children all the more sexually alluring."

[256] "Child pornography law has changed the way we look at children. I mean this literally. The law requires us to study pictures of children to uncover their potential sexual meanings, and in doing so, it explicitly exhorts us to take on the perspective of the pedophile. As Congress stated, one danger of child pornography is that it 'encourag[es] a societal perception of children as sexual objects.' But child pornography law unwittingly encourages the same perception. It, too, sexualizes children, and thereby promotes one of the very dangers it purports to solve."

[264] "What does it do to children to protect them by looking at them as a pedophile would, to linger over descriptions of their genitals? And what does it do to us as adults to ask these questions when we look at pictures of children? As we expand our gaze and bend it to the will of child pornography law, we transform the world into a pornographic place. Our vision changes the world that we see. Child pornography law constitutes children as a category that is inextricable from sex. The process by which we root out child pornography is part of the reason that we can never fully eliminate it; the circularity of the solution exacerbates the circularity of the problem. Child pornography law has a self-generating quality. As everything becomes child pornography in the eyes of the law -- clothed children, coy children, children in settings where children are found -- perhaps everything really does become pornographic."

H13 [1679] "Child sexual exploitation is a master narrative of contemporary culture...[1680] It is likely that the discomfort that adults in modern society have about the combination of youth and sex has prevented open and realistic discussion on various aspects of what is a more complicated and diverse topic than has been assumed.

"The public and government officials have embraced the politics of fear regarding child sexual abuse."

[1682] "Notably, the focus on child pornography and on imposing increasingly harsh consequences on offenders who violate child pornography laws is not limited to those who produce child pornography or who otherwise coerce or entice juveniles into performing sexually explicit acts. Moral entrepreneurs have ensured that strict enforcement and punitive measures are extended to distributors as well as mere passive possessors."

[1684] "The trajectory that led to current policies regarding child pornography is marked by media hype and the occurrence of similar interests aligning between politicians and law enforcement officials."

[1686] "The mean sentence in 2010 for nonproduction child pornography [i.e., possession, receipt, or distribution] offenders approached a ten-year-term -- specifically, 118 months. Interestingly, this is longer than the mean sentence of 108.6 months issued by federal judges in 2010 for contact sexual abuse crimes. The mean sentence for child pornography offenders (nonproduction) was also greater than most serious crimes, including manslaughter, robbery, arson, and drug [1687] trafficking. Murder and kidnapping were the only types of offenses that exceeded mean and median sentences in comparison to child pornography offenses.”

[1692] "In 2010, the number of defendants sentenced for nonproduction child pornography crimes was nearly five times the number of defendants sentenced for child sexual offenses."

[1716] "The political agenda that considers child pornography consumers as morally bankrupt regardless of any direct consequences appears to be an overreaction in late modern society to the controversial issue of the sexuality of children. The conceptualization often poses a duality of the dangerous pedophile and the innocent child."

"[W]hat is portrayed as criminal and deviant is often a reflection and manifestation of something that is covertly normal and desirable. The innocence/danger dichotomy is undermined by youngsters themselves, cultural aesthetics, the commercial lifestyle/entertainment industry, the social implications of technology, the fight against child pornography, the fluidity of sexual identities and tensions within the family. These are all sources of power that trouble the asexuality of childhood, therefore hinting at the generality of [pedophilic] desire which is far more diffuse and blurry."

[1718] "The National Center for Missing and Exploited Children has...determined that the vast majority of producers were known to the children: twenty-seven percent were their parents, ten percent were other relatives, and twenty-three percent were family friends. On the other hand, less than four percent were strangers. Markedly, the pornographic material was self-produced [i.e., by the children/minors themselves ] in eight percent of the reported cases."

[1729] "There is...a need to differentiate the degree of exploitation involved in the material. A popular categorization is offered by the Combating Paedophile Information Networks in Europe (COPINE Projects). It ranks the type of images on a scale of one to ten, from least to greatest harm: indicative, nudist, erotica, posing, erotic posing, explicit erotic [posing, explicit sexual activity, assault, gross assault, sadistic or bestiality. A useful purpose for such a ranking is that, from a punishment-theory standpoint, crimes and sentences are appropriately based on the level of suffering involved. Thus, a system that strives for proportional and rational punishment requires laws that differentiate between unequal harms."

[1730] "The illegality of content may encourage consumption as many report that the unlawful nature of the content is what makes the material more sexually exciting."

"[T]he contention that incarceration is justifiable based on the thesis that material with a deviant theme will cause the viewer to act out such a theme in real life is a slippery slope. It would theoretically countenance the criminalization of [1731] material with images of drugs, violence, terroristic activities, etc....which may equally invoke emotive responses and imitative behaviors."

[1732] "[A] recent federal audit criticized the FBI's use of resources devoted to investigating cybercrimes. It found that forty-one percent of its cyber agents investigated online child pornography matters, compared to nineteen percent investigating national security intrusions. The audit concluded that the underutilization of resources left the country vulnerable to national security threats."

[Also see, in Politics section of this site, Projection Issues and Sexualizing Children .]

G2 [122] [In Denmark, the increased availability of all types of pornography (including child) correlated with a decrease in the rate of actual child molestation. This decrease was not related to greater acceptance or a reduction in reporting.]

"The explanation for the drop in sex-crime rates with the increased availability of pornography has been called the 'substitution hypothesis.' The common male reaction to pornographic pictures is sexual arousal and masturbation. Thus, the availability of portrayals of nudes and forbidden activities, accompanied by auto-erotic behavior, may provide an outlet for antisocial sexual impulses, permitting vicarious experience of what would otherwise be acted out with a victim."