A Response to Alexandra Gelber’s, “Response to “A Reluctant Rebellion,””
Dr Nigel Leigh Oldfield, Researcher and Ex-offender in This Field.
Dr Nigel Leigh Oldfield, Researcher and Ex-offender in This Field.
The article from Mr Hansen:
The article from Ms Gelber:
The article from ‘Sentencing Law and Policy’:
- I write in response to Mark Hansen’s article “A Reluctant Rebellion,” which appeared in the June 2009 issue of the ABA Journal.
I write in response to Ms Gelber.
- Although Mr. Hansen’s article raises questions about the child pornography sentencing guidelines, his piece speaks to a much more fundamental question about the legitimacy of the crime at issue.
These being the fundamental questions, which are continuously smoke-screened and contorted, by Misinformationists, such as Ms Gelber.
- While Mr. Hansen does not explicitly argue that the collection, trade, viewing, and possession of images depicting the sexual exploitation and abuse of children should be legal
As it happens, I believe that all publicly-available images should be open to legal collection, viewing and possession, in a free society, but that is not within my agenda, here.
Within this piece, I will expose the tools of the Misinformationists.
The first is the use of the terms ‘exploitation’ and ‘abuse’; here, is their first tool, The Use of Weasel Words.
Exploitation is an inherent part of any society. It is, merely, a person’s or a group’s perception, on the use of the services/acts of one person by another. It is not inherently harmful and is, essentially, a moral position.
Abuse means one of three things:
(1) A moral unacceptability, voiced by an individual or group,
(2) Something which is ‘proven’ to cause significant or serious harm,
(3) A smorgasbord of other post-modern/feminist possibilities.
This is why it is relished and used, so widely, by the Misinformationists, towards their gain. In this document, these meanings will be referred to as Abuse 1, Abuse 2 and Abuse 3, respectively.
- he does strongly question whether the crime should be treated as seriously as it currently is under federal law. Indeed, he writes, “Critics say the mandatory and recommended penalties for child porn offenses under the guidelines far exceed the seriousness of the crime committed by the typical offender who is swapping and downloading child porn online with other like-minded individuals in the presumed privacy of his own home.”
As say, I do argue that it should not be a crime. However, if one wishes to maintain this thought crime (for that is what it is), then it should be nothing more than a ‘misdemeanour’, based on moral standards of obscenity, if that is what one wishes one’s society to be based upon; personally, I do not.
- Mr. Hansen’s article perpetuates fundamental misunderstandings about the nature of the crime,
I am not sure Mr Hansen has, but I am sure that Ms Gelber does, as I will clarify, in this piece.
- the offenders, and the law. When properly understood, the substance and structure of the criminal provisions and sentences for these pernicious crimes show an appropriate response to an exploding crime problem.
When properly understood, we confirm that Ms Gelber and her associates to be Misinformationists. A bigger, important question is, “why would they”?
- The True (sic) Nature of These Images.
- The phrase “child porn,” used repeatedly by Mr. Hansen throughout his article, masks the true nature of what these images and videos portray, which is the sexual exploitation and abuse of children.
The phrase “child porn” is quite correct, in relation to the vast majority (if not all) of these images. The term pornography is best defined as “something which is created to sexually titillate (i.e. to excite pleasurably)”. This is the primary reason, why the majority (all?) of the present images were created, whether it be the legally-produced images in Denmark, in the 1970s, or the quasi-legal images, in the Ukraine, Russia and USA, over the last two decades.
Even for those ‘cottage industry’ images, historical and those being created now (e.g. the ‘M’‘,V’, ‘BS’ series, ‘sexting’ etc), it is fair to suggest that they were probably all created to sexually-titillate the creator, the participants or the recipients. Since all the images, described above, are pornographic and involve minors (children) they are all child pornography. The point is, of course, that terms are not mutually-exclusive, but, it is very useful to pretend that they are, to the Misinformationists. This is their second tool, The Smokescreen of the Image.
Of course, what Ms Gelber means, is that they are Abuse 1 images, something which she and others (presumably) find (or pretend to find) morally-objectionable and nothing more. This is because, from all my research, I have not found reference to one image that qualifies as that of an Abuse 2 image. These images are both child pornography and Abuse 1 images, for those who see them as such.
- In the 1970's and 80's, the typical sexually abusive images of children involved photos of nude children in sexual poses, what would be classified under federal law as a “lascivious exhibition of the genitals or pubic area.” 18 U.S.C. § 2256(2)(A)(v); United States v. Petrov, 747 F.2d 824, 829 (2d Cir. 1984); United States v. Weigand, 812 F.2d 1239, 1241 (9th Cir. 1987);United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986).
Although such images were represented, in those days, there were also more ‘graphic’ images, produced quite legally, in the countries of origin and possession.
It should be noted, that Ms Gelber’s term sexually abusive images of children is now the de facto term (for now).
- Over time, increasingly severe and graphic images have started to become the norm instead of the exception, depicting the violent sexual abuse of younger and younger children, including infants and toddlers.
It is true, that such images have increased in number. There has been a parallel increase in the availability of all images, thanks to the new technology. The internet is a mirror of society, it reflects what ‘we’ are, and what ‘we’ do, whether the observer likes it or not. Couple this with the increase in the availability of digital-capture technology, places us where we are today.
It should be noted, that we now have violent sexual abuse, without definition. Ms Gelber increases the Emotional Pressure (the third tool of the Misinformationists).
It is true, that younger and younger children are being imaged. There is no evidence that this is any more harmful (if at all) than those of any other age, but Ms Gelber adds it for emotional effect.
- In a recent prosecution in the Northern District of Florida, fourteen defendants were convicted for participating in a newsgroup where they traded over 400,000 sexually abusive images and videos of children, including images of toddlers and the sadistic sexual abuse of children. See, http://www.usdoj.gov/criminal/ceos/Press%20Releases~ /NDFL_SEVEN-DEFENDANTS_1-14-09.pdf.
‘Trading’ is not required in a newsgroup. The images are freely-available, for download, and legally so, in some jurisdictions. In any case, the exemplar did not involve a newsgroup; it was s P2P, file-sharing process.
- In some of these videos, the children can be heard screaming and crying in response to the physical assault. See also, United States v. Cole, 2009 WL 1443937 *1 (6th Cir. May 22, 2009) (unpublished)
Some? How many? Screaming and Crying? In what way? Pleasure, Pain, Boredom, Acting?
Unpublished? Well, how odd, one cannot really know, until one sees any transcripts, in fact, not without seeing the images and, perhaps, not even then.
I do not doubt, in a world of trillions of images and trillions of human acts, such an image will surface.
- (defendant admitted to possessing images of adult males engaged in sexual activity with infants); United States v. Pugh, 515 F.3d 1179, 1193 (11th Cir. 2008) (defendant’s collection included a video of an adult male raping an infant girl
As is known, rape is a legal term, requiring the minimal level of ‘penetration’. There is no doubt that unacceptable, partial and full penetration of infants and other minors occurs around the world. I challenge anyone to evidence such an image, at this time.
This introduces the fourth tool of the Misinformationists, The Lack of Image Transparency.
- and a picture of an adult male having sex with a toddler who wore a dog collar around her neck).
Having Sex? Again, why should a dog collar cause any more harm (if any) than that of a necklace, charm or T shirt? Selective, observation for effect, Tool 3, Emotional Pressure.
- The collection amassed by the defendant in United States v. Parmelee, 319 F.3d 583 (3d Cir. 2003) provides a good example of what is seen today. Interspersed among nude images of young girls revealing their genitalia, which are illegal in their own right, are images of: a naked, minor girl who appears to be screaming in pain
- as she is digitally penetrated on a bed; (b) two Asian girls, one naked and kneeling with a dog collar and leash around her neck; the other standing in a see-through bodysuit holding a whip in one hand and a leash in the other; (c) a series titled “Young Bondage” depicting a naked, minor female with a metal collar around her neck that was approximately two-and-a-half inches thick and had chains coming from it connected to straps around her wrists ... a picture of a naked, minor female ... lying down and inserting a partially peeled banana into her vagina ... a picture of a naked, minor female standing and holding the neck of a bottle which has been inserted into her vagina ... a picture ... depicting a partially clothed baby having a pacifier inserted into her vagina ... photographs of: minor females blindfolded with their hands and feet tied to a table [and] a minor female sitting with her legs straight up in the air in a “V” position while holding a bottle inserted into her vagina and what appears to be either a penis or a banana inserted into her mouth. Parmelee, 319 F.3d at 586 n.3.
These theatricals can certainly be shocking to the novice. However, one then must move on and ask “where and why does this shock originate”?
- Thus, the collection, trade, and possession of such images are not illegal because of “polite society’s disgust and revulsion” with pornography, or as one judge put it, “[o]ur ‘social revulsion’ against these ‘misfits.’” United States v. Paull, 551 F.3d 516, 533 (6th Cir. 2009) (Merritt, J., dissenting). The heart of a child pornography case is not Victorian-era discomfort with sex, but the sexual exploitation of children through the ongoing mass circulation of images of their abuse.
Of course, the former rationalisation is exactly the reason for these legal responses (they are Abuse 1 images), for these ‘misfits.’” are all of ‘us’ and the novices are only beginning to accept such, as a possibility. However, one is compelled, then, to consider the ongoing mass circulation of images of their abuse. This is dealt with, later.
- As the Supreme Court noted in New York v. Ferber, 458 U.S. 747, 756-57, 58 (1982), “It is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling ... [and that] the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child” (internal quotation and citation omitted).
It is evident - Is it? A source of proof or evidence, please?
beyond the need for elaboration - well, only if one accepts statements on face value; I do not.
State’s interest in safeguarding the physical and psychological well-being of a minor is compelling - Noble, for sure.
... [and that] the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child”
- Is it? A source of proof or evidence, please?
It should be noted, that harm and not serious or significant harm is stated.
The un-evidenced, obiter dicta of judges is not the truth, as much as the legal profession et al would like to believe it is.
- The True (sic) Nature of the Harm Caused to the Victims.
- The trade of sexually abusive images of children inflicts unique harms upon its victims.
A source of proof or evidence, please? Dogma is insufficient.
- As expressed by one victim, who survived a murder attempt by her mother, and five years of sexual abuse, when she was aged 5-10, by her adopted father who shared images of that abuse (and also kept her chained in the basement and intentionally malnourished), “Usually, when a kid is hurt and the abuser goes to prison, the abuse is over. But because [the defendant] put my pictures on the Internet the abuse is still going on. Anyone can see them. People are still downloading them.
The fifth tool of the Misinformationists, The Anecdotal Report from the Favourable Actor.
This was the Testimony, submitted by Masha Allen to the House Energy and Commerce Committee Subcommittee on Oversight and Investigations. Masha is the FBI’s, victim, ‘Pin-up Girl’, in more ways than one. After her younger years of violence and being an orphan, in Russia, she was adopted by, Matthew A. Mancuso who, from court records, later ‘molested’ her and distributed images of Masha on the internet. From the publicly-published evidence, these appear to be posing images.
- ... I’m more upset about the pictures on the Internet than I am about what [the defendant] did to me physically.”
Masha is upset. She claims no harm from the acts or the images, only that she is more upset. This is a convenient anecdote, nothing more, from a young woman, homed, financed and clearly conditioned by the FBI and its associates.
There is also substantial evidence, that the FBI have used images of Masha in their sting sites; quid pro quo perhaps?
- Another child pornography victim, who was raped and bound repeatedly by a relative for 2 years starting at age 10, writes “thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them. I was so young ... It terrifies me that people enjoy viewing things like this ... Each person who has found enjoyment in these sick images needs to be brought to justice ... even though I don’t know them, they are hurting me still. They have exploited me in the most horrible way.”
This claim is un-sourced, thus, not open to critique, as we cannot confirm any veracity on anything, however, let us take it ad verbatim.
- “thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them. I was so young”
This is clearly irrational. ‘She’ is not being raped, or hurt by the images, or where they are. She is deflecting her, alleged, pain, at something which she can cling onto. She is no more being harmed, than the Iraqi child, who has been bombed or shot, when we observe that child’s image in the media, in fact, the media sell such images, how ironic.
This is the post-modern ‘damage’, created by those around ‘her’ who have failed to challenge and have, in fact, supported ‘her’ cognitive distortions, which she, supposedly, suffers from; all over an inert, historical, digital representation of something which may have occurred, in the past.
What is more, Ms Gelber et al feel able to exploit it, again and again.
- These victims’ sentiments correspond to the Supreme Court’s view on these images, as it explained more than two decades ago: The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children ... [T]he materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation ... [P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography. Ferber, 458 U.S. at 759-60 and n.10 (internal citations omitted) (emphasis added).
More, un-evidenced, obiter dicta. After nearly three decades, it appears we have less than a handful of dubious anecdotes (from the millions who have been imaged), from favourable actors; this is poor evidence, to say the least. Obiter dicta are not truth; in fact, they are often opposite to the truth, in hindsight.
- The David Grober case, mentioned by Mr. Hansen, brings the argument full circle.
Quite the opposite, we are now approaching some clarity, logic, linearity and reality.
- Among the 1500 images and 200 videos of child pornography found on the defendant’s computer were images depicting both of the victims quoted above, along with scores of other children,
This could be have been carried out, without trading, in a matter of days (hours) on a decent broadband connection, at the time.
- some who have been identified and rescued from their abusive situation and some who have not.
Correction … a tiny number have been identified, not always after the event, and the vast majority have not.
- The True (sic) Dynamic of the Crime.
- In addition to severely downplaying the content of these illegal images, and what necessarily happens in order for those images to be created, Mr. Hansen’s article also misrepresents the true dynamics of this crime,
In addition to severely up-playing and applying dubious (actually, weak or non-existent) foundations, applying logical fallacies and by using Tools 1-5 of the Misinformationists, Ms Gelber begins to misrepresent the true dynamics of this crime.
- which he describes as the “swapping” of images in the “presumed privacy” of a defendant’s own home.
This is exactly what happens in many cases (but, far from all). As most ‘sharing’ is now by P2P, the downloader may not even be present or know that the content is even illegal.
- In a similar vein, Federal Public Defender Troy Stabenow wrongly characterizes these defendants as the passive viewers of the crimes of others.
Not only are they the passive viewers of the crimes of others (a little emotional, once again [and, somewhat, incorrect], but we will go with it), the source of what they may observing, in the images, may not be a crime, at all.
Ms Gelber now wishes the reader to visualise that these images are of ‘babies, torture and bottles’ (Tools 2, 3 and 4) and they cause long-term harm (Tool 5), whereas the vast majority, are innocuous images of naked/semi-naked minors; all are not Abuse 2 images.
- As a threshold legal matter, the possession of child pornography is properly prohibited by law, even when it is in “private.” Osborne v. Ohio, 495 U.S. 103, 110-11 (1990) (affirming the constitutionality of laws prohibiting possession of child pornography).
We now move onto the sixth tool of the Misinformationists, The Law Says.
Allow me to clarify, to Ms Gelber, the hierarchy of the rational understanding, of the world around us:
Thus, as interesting as the law may be, it is not the truth; it is fluxional and may be changed on a whim. Law just justifies laws. It will not strengthen your weak or non-existent foundations, nor make your false statements true.
- More fundamentally, it is simply not possible to disconnect the collection, trade, viewing, and possession of these images from their production.
Fundamentally? It is possible to do all those things and totally disconnect from their production. I do not need to invoke the production of air, for me to breath. It is just there. Always was and always will be, as long as I am here (one hopes).
This introduces the sixth tool of the Misinformationists, Let’s Make Indirect Production, Direct Production.
- Every defendant who receives sexually abusive images of children is not acting within the four corners of his own home, but rather is a participant in what Mr. Hansen acknowledges is a global market with millions of members–a market which constantly demands that more children be abused in order to create new images.
No, he is in his own home, if he is - that is the truth.
I am a participant in air breathing … I cannot see your point, yet.
Yes, in the global market of air breathing. We all do it. Oh, I see, you think there is market of supply and demand, operating in these images, which may be restricted?
Let us look at the historical perspective.
At times, in the last three decades, there has been a commercial market in images of minors, as described before. In the mid-1970s, the USA and UK (again, under the lobbying of Misinformationists and frauds) decided that these ‘legal’ images should be made ‘illegal’. It is difficult to say, to many of us, now, why that is, but the law is the law. As has been said, these were, generally, innocuous images, and harm was never communicated or evidenced; it was an Abuse 1 image issue, a moral issue. The timing can be explained, but is not relevant here.
As we moved into the 80s and 90s, easier, international commerce and contradictory legal systems, allowed a number of websites to surface, mainly in the East. Again, these were all, generally, innocuous images, but much higher quality, in terms production etc. There is much evidence, that these models lived happier lives, well-fed and schooled. Parental presence was common.
At this time, with a commercial market operating in these images, it was not difficult to entice younger prostitutes, or the poor, to pose for images, some now involving minor, sexual acts with each other and adults. Again, this was seen as a ‘step-up ‘in life quality, by many.
The USA LEAs then went global, in the ‘war on ‘CP’, making deals with those in the East and carrying out a few token busts aboard and at home. Widespread filesharing was now surfacing.
By the early 2000s, commercial websites were declining (not that there had been many), with newsgroups at their peak and filesharing quickly catching up.
Throughout the 2000s, to date, we have seen many ‘CP’ scare stories, which are nothing more than fly-by-night, spamming hacks of forums etc. For all intents and purposes, there are no commercial ‘CP’ websites in operation. Now-and-then, some novice attempts to bend their local laws and goes a little too far and they are busted.
What about ‘babies, torture and bottle’ images’, i.e. those which are viewed as some, as being more ‘extreme’? Throughout the 80 and 90s, it was possible to set up a fleeting ‘CP’ website, reusing and regurgitating all the available images, with little risk. The images, almost totally, originated from the newsgroups, some perhaps collected, now and then, from the few websites which were operating, for short periods. Within newsgroups, and now filesharing, ‘hands-on offenders’ would leak their images into the system. Of course, there can be little doubt (knowing human nature), that small, close, covert groups were conspiring to create some of these images, but, in those years, they were extremely rare and small in size. There is no credible evidence that there were any commercial ventures.
One unintended consequence of ‘the clampdown’, is that, whereas, the number of innocuous images was large, at first, and they were easily-available, now, that type have become much less common and the majority are much more graphic and in video format. Only the novice gets caught dealing and trading in these. In fact, they may be the ‘innocent patsies’, set up for just that purpose, by the experts and the authorities.
With increased, international contact, like-minded people of all kinds have found groupings. For ‘hands-on offenders’, where in the past, their acts will have been local and unearthed, now, occasionally, a small number of people, for many reasons, decide to chance their hand; many novices are drawn in. These are the occasional busts which are now seen. These busts come at great cost, in terms of manpower and facilities, with little, real gain, and much destruction of individuals and families. Of course, little changes in the off-line world.
That is the potted history of child pornography (1970-2009)
- An ongoing international investigation succinctly makes this point. Operation Joint Hammer, and its European counterpart Operation Koala, are premised in part on the investigation of customers who accessed a website to purchase lengthy videos depicting the sexual exploitation of dozens of children from a web site. See, http://www.usdoj.gov/criminal/ceos/Press%20Releases/JOINT-HAMMER_12-12-08.pdf. The videos were made by the web site operator. This international investigation has generated leads in over 30 countries, and has led to scores of arrests in the United States so far, including child molesters and producers of child pornography. The web site operator was constantly creating new material for his customers, who kept coming back for more. Quite literally, if there had been no market for these illegal videos of child abuse, they would not have been made in the first instance.
Here is one example of such a bust. Note that Ms Gelber now applies Tool 1 (sexual exploitation). Ms Gelber has no idea if the ‘proprietor’ would or would not have made such images, these were innocuous images, involving clothed and partially-clothed young females, but a bust is good for the figures and for other wider gains. Sexual activity was, essentially, nil.
Here we introduce the seventh tool of the Misinformationists, The End Justifies the Means, Even if There are Better or More Designed Ways. i.e. led to scores of arrests in the United States so far, including child molesters and producers of child pornography
- As those investigations illustrate, child pornography collectors never innocuously download images in “private.”
They can and they do and this has been clarified.
- Rather, they are the engine of demand that fuels the molestation of children to create more supply.
Operation Joint Hammer, and its European counterpart Operation Koala, were not a molestation of children case. Ms Gelber is setting up straw men, once again. You have any more examples, Ms Gelber?
- The Supreme Court recognized this dynamic over 25 years ago when it wrote, “the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.” Ferber, 458 U.S. at 759. The Supreme Court repeated this sentiment several years later when it commented that “It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.” Osborne, 495 U.S. at 109-110.
Just a pity it was incorrect, let alone the untended consequences and the fact it has been unsuccessful - in fact, quite the opposite, based on numbers and nature of the images. Note, Tool 1, is applied, once again (sexual exploitation).
- There are other insidious dynamics of this crime, discounted by Mr. Hansen: the impact of the content on the viewer, and the impact the collectors have on each other.
Well, let us see …
- In his article, Mr. Hansen quotes Mr. Stabenow, who essentially suggests that child pornography laws are wrongly concerned that the images goad the consumers to commit future crimes: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder ... That doesn’t mean that they’re going to go out and commit torture and murder.” The analogy does no hold water, principally because no one who watches Saw believes that the images of violence are actually happening, where in child pornography images, real children are actually being abused.
Ms Gelber, apparently, is able to read the minds and knows the full psychology of movie viewers and those who look at such images. As this is already a long piece, for now, I will say that Ms Gelber clearly has little or no understanding of human fantasy dynamics or the suspension of disbelief.
In any case, we will see, later, why this is an irrelevancy.
- Furthermore, what is the point of any pornography if not to stoke the fires of sexual desire.
Because sexual desire is short-lived, when quenched.
- More importantly, Congress has found that the individuals who collect these images are affected by the real abuse they portray: “child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites ...; such use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer”. Omnibus Consolidated Appropriations Act of 1997, PL 104-208, § 121 (September 30, 1996) 110 Stat. 3009-26.
1996? I see. Now, where are their sources?
- Additionally, through the internet, child pornography collectors can operate in world populated exclusively by “like-minded individuals” who tell them that it is normal to have a sexual attraction to children, and that it is acceptable to act on that attraction. This message, conveyed through the images themselves, erodes the societal mores which would otherwise inhibit them from satisfying that impulse. These images diminish the shame that someone might have felt about having an attraction to children, which lowers the barriers to indulging that attraction.
child pornography is often used by pedophiles
Really? Incredible (hardly). What is your point, Ms Gelber?
Additionally, through the internet, child pornography collectors can operate in world populated exclusively by “like-minded individuals who tell them that it is normal to have a sexual attraction to children
It is absolutely ‘normal’ for a paedophile. In fact, it is perfectly ‘normal’ for many non-paedophiles, as well.
and that it is acceptable to act on that attraction
Assertions and suggestions are not guarantees. Where is your evidence, Ms Gelber?
erodes the societal mores which would otherwise inhibit them from satisfying that impulse.
Now we have a little truth, societal mores.
These images diminish the shame that someone might have felt about having an attraction to children,
Shame, for having an attraction to children? What was the date again? 1886, 1996, ah, I see .. oh no, sorry … this is Ms Gelber, in 2009.
which lowers the barriers to indulging that attraction
Assertions and suggestions are not guarantees. Where is your evidence, Ms Gelber?
- Every defendant who provides a sexually abusive image to someone else is saying that it is OK to be exploiting children this way.
How does Ms Gelber know what they are ‘saying’ or conveying?
- When committing these crimes, each defendant necessarily enables and emboldens others, which is one more reason why this activity is properly criminalized and punished.
Enabling and emboldening others is a good thing. Of course, if Ms Gelber is conflating looking at an image with ‘hands-on offending’, then I can see her new ‘tool’.
- The True (sic) Threat of These Defendants.
- With that as a backdrop,
Is that all you have to draw upon? It is a good job, Ms Gelber, that I am avoiding contrary research and evidence, at this time.
- it becomes clear that, contrary to Mr. Hansen’s suggestion, individuals who have collected or viewed child pornography have exploited children.
That may be true, in some cases. Exploitation is not illegal and where anyone says it is, is a place full of hypocrites and those in denial.
- Put another way, the distribution, receipt, viewing, and possession of child pornography is a distinct and egregious form of child exploitation worthy of punishment in and of itself.
Abuse 1 image rationalisation. Ms Gelber et al do not like it, so we will not be allowed to do it.
- As these individuals collect these illegal images, they exploit the children in the images. As they trade them among other “like-minded individuals,” they reinforce the concept that a sexual attraction to children is normal and acceptable.
I hate to burst your bubble, Ms Gelber, but it is normal and acceptable, and many of us know it to be true - but that has little to do with trading any images.
- As they establish contacts and networks to facilitate the trade and discussion of these images, they contribute to the market demands for more product, which means more child abuse.
This has been dealt with. I see that Ms Gelber has switched back, via Tool 1, from child exploitation to child abuse.
- Nonetheless, woven throughout Mr. Hansen’s article is the theme that individuals who collect and trade child pornography are not really a threat to children or society, certainly not in the way that “actual” child molesters are.
Ms Gelber, those who collect and trade child pornography are no more a threat to children or society, than you are a threat to all society, by your looking at images of death and destruction, in the media. If those who collect and trade child pornography are what you imply, then you are a killer (potential or actual), if not a murderer - are you?
On the specific issue, of course there should be relative sentencing and, in civilised countries, such as mine, there is (even if it is still draconian, in relation to alleged, harm caused).
- It is here where critics of child pornography laws attempt to have it both ways. On the one hand, they argue that child pornography collectors are not a danger to children. On the other, as indicated in Mr. Hansen’s article, they argue that the defendants amass these images for their “personal gratification” or are “titillated” by what they see.
What is your point, Ms Gelber? They are, evidentially, not mutually-exclusive. Ms Gelber, do you know anything, of worth, about human sexuality?
- Jon Hanson, one of the defendants profiled in the article, adopted the first argument, claiming not to be a danger to children. Upon receiving images that included pictures of a seven-to-eightyear-old girl being sexually penetrated by an adult male, Mr. Hanson would write to other likeminded individuals that he “wanted to f**k one so bad,” or that he wanted to rape a young girl. Eastern District of Wisconsin, No. 07-cr-330, Sentencing Transcript, June 19, 2008, page 23 (hereinafter “Transcript”). It does not seem a difficult argument to make that there is legitimate cause for concern when someone reacts to a video of a child being sexually assaulted, not in horror, but in envy of the participants and with a desire for more material.
What is your point, Ms Gelber? Fantasy or needs are not actions, even in this singular case. I can assure you, Mr Hanson is not a rarity.
- By repeating an argument that is often made by defendants in child pornography trafficking and possession cases–that these offenders pose “little or no threat of physical harm to any children”–Mr. Hansen disregards the harm already caused children through the continued circulation and consumption of these images.
Which (and I am being polite) is a dubious claim, at best.
- Moreover, it is difficult to understand how Mr. Hansen can conclude that a child pornography collector does not, and will not, pose a physical threat to a child, especially when he himself writes that “there is no published research on the odds that viewers of child porn will actually assault a child,
He is correct, except incorrect, in the sense, that there is published work to show the opposite is the case. It appears that Mr Hanson is nearer to the truth than you are, Ms Gelber.
- and quotes a psychiatrist who says, “There’s nothing very definitive when it comes to sexual disorders, especially sexually disorders involving children.”
I would need to see the paper to comment fully, but, this is consistent with present views on human sexuality, involving minors. Do you know any of this work, Ms Gelber?
- This lack of definitive information does not stop Mr. Hansen and countless defendants from repeatedly making the self-serving argument that they are not a threat to children.
You misinterpret and distort the points Mr Hanson tries to make; that is the lawyer in you, Ms Gelber. There is published work and I have it or access to it.
- Whether or not one can predict what an individual might do, there is some statistical evidence that consumers of child pornography may also be child contact offenders. Contrary to the statements in the article, a study has been published indicating that among individuals who were convicted federally of trafficking or possessing child pornography, there was a high incidence of previously undisclosed contact offenses against children. Bourke, M.L, Hernandez, A.E. (2009). The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders. Journal of Family Violence, 24(3), 183-191.
Oh dear, a lawyer setting themselves up for a fall. I think you need to keep up with current affairs, Ms Gelber. Please allow me:
“But, I caution the law enforcement community and others against generalizing beyond the offenders who were the subjects of my treatment interviews. I urge the professional and scientific community to attend to this understudied group of offenders.”
STATEMENT OF ANDRES E. HERNANDEZ DIRECTOR OF THE SEX OFFENDER TREATMENT PROGRAM FEDERAL CORRECTIONAL INSTITUTION BUTNER, NC
The Government also furnished the Court with a presently unpublished study entitled, “The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders” (“Butner Study” or “Study”). This Study set out to determine whether a group of men who had been convicted of possessing, receiving, or distributing child pornography, but who had no known history of “hands-on” sexual abuse, were “merely” collectors of child pornography or, alternatively, whether this group actually had committed “hands-on” sexual abuse. The Study concluded that the collectors of child pornography were “more likely than not to have sexually abused a child via a hands-on act” based on rather startling data. Butner Study at 2. The Study found that 85% of collectors admitted to having previously abused children and that only 2% of collectors who still denied abusing children could pass a lie detector test on that question. Id. at 18. Rogers was provided a copy of the Study and was able to comment on its merits. The Government has offered this Study, at a minimum, as an indication that recipients of child pornography are dangerous individuals and, possibly, to suggest that Defendant has committed a sexual assault against a child in the past.3 See Pl.’s Sentencing Mem. at 22. The Court will elaborate on this Study and the weight the Court assigns to it in discussion to follow.
3 While the Government never explicitly argued that Defendant has personally sexually assaulted a child, the Government seems to implicitly take this position, arguing its brief: “[The Butner Study] shows that the Defendant is statistically more likely than not to have actually committed an act of child sexual abuse. . . . [T]he study suggests that the Court should not give any substantial weight to the fact that the Defendant has not been discovered to have committed a hands-on child sex offense.” Pl.’s Sentencing Mem. at 22.
C. Consideration of the Butner Study
The Government offers the Butner Study to demonstrate that Defendant is a threat to the public. However, the Government also offers the Study to show that “defendant is statistically more likely than not to have actually committed [a past] act of [“hands-on”] child abuse.” Pl.’s Sentencing Mem. at 22. The inference that the Government asks the Court to draw is distasteful and prohibited by law. Uncharged criminal conduct may generally only be considered in sentencing if proved by a preponderance of the evidence. See United States v. Howe, 538 F.3d 842, 855 (8th Cir. 2008); see also United States v. Tyndall, 521 F.3d 877, 882 (8th Cir. 2008). Moreover, the Government bears the burden of proof. United States v. Azure, 536 F.3d 922, 933 (8th Cir. 2008). The Butner Study, even if credible, falls far short of this standard because it fails to demonstrate whether Defendant has, personally, previously assaulted a child sexually. At most, the Study reveals that a majority of other individuals with a similar criminal history committed crimes against children, but the Court cannot see how evidence of those individuals’ crimes establishes by a preponderance of the evidence that Defendant committed a prior sexual crime. This conclusion is only bolstered by the fact that the Government failed to present any physical evidence that Defendant sexually assaulted anyone, let alone a child. The Government produced no witnesses, no victims, no forensic evidence, no confession, and no other sign that any previous improper sexual activity occurred. Indeed, the Government agreed with the PSR’s Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 14 of 18 7 The Court will note that the Butner Study is not exactly on point because it never delves into the risk of recidivism of sexual offenders. The Study merely investigates whether current sexual offenders have committed other, undisclosed sexual crimes. The Court will, however, accept the proposition that those who have physically harmed children are more dangerous to the community than individuals who only collect child pornography. Thus, the Study is indirectly relevant in determining the dangerousness of an individual like Defendant. -15- calculation of Defendant’s criminal history, which does not include any references to prior sexual crimes. Therefore, this Court will not accept the implicit invitation to use the Butner Study to hold Defendant accountable for a phantom crime unsupported by any evidence. The Court also rejects the Government’s attempt to use the Butner Study to demonstrate that Defendant is a danger to the community. The Government argues that Defendant is dangerous because the Study indicates other individuals charged with similar crimes have committed “hands-on” sexual abuse of children.7 The Court rejects this proposition because the Butner Study is not credible. The Butner Study’s sample population consisted of incarcerated individuals participating in a sexual offender treatment program at a federal correctional institution. Tr. at 29. As Rogers testified, the program is “highly coercive.” Id. Unless offenders continue to admit to further sexual crimes, whether or not they actually committed those crimes, the offenders are discharged from the program. Id. Consequently, the subjects in this Study had an incentive to lie, despite the fact that participation in the program would not shorten their sentences. Rogers testified that the Study’s “whole approach” is rejected by the treatment and scientific community. Id. Complicating this bias is the fact that the Butner Study did not report on the nearly 23% (46/201) of individuals in the treatment program who left due to “voluntary withdrawal, expulsion, or death.” Butner Study at 10. As a result, the offender population and the Study’s results were almost certainly skewed. Tr. at 30. Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 15 of 18 8 Peer review is also a key factor that the courts consider when deciding whether to allow scientific testimony into evidence under Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 593-94 (1993). Although the Federal Rules of Evidence do not technically apply at sentencing, the Court does note that this Study would likely fail to meet the Daubert standard. -16- The Butner Study also suffers from additional methodological flaws. First, the subjects of the Study were not randomly selected from those who only collect child pornography, which indicates that even setting aside the incentive to lie, the sample population may not be representative of the larger population that collects child pornography. Id. at 33. Second, the Study employed an unpublished questionnaire. Id. at 37. This prevents other independent researchers from verifying whether the questionnaire is reliable and capable of producing results that are accurate and meaningful. Id. at 38. Third, the Study relies, in part, on the results from polygraph examinations, which is highly problematic given the unreliability of such tests, especially since “no standard for training polygraph experts” exists. Id. at 34. Fourth, the Study is not peer reviewed, which is the norm in science.8 Id. at 30. According to Rogers, the peer review process would likely be “pretty uncomfortable” for the researchers because the data and statistics in the Study do not fit the researchers’ conclusions. Id. Finally, the Study also appears to suffer from flaws relating to its control group and independent variable, or lack thereof. Id. At 31-34. Instead of producing an expert to explain the apparent weaknesses in the Butner Study, the Government preferred to attack Rogers’ critique. The Government first brought out the fact that Rogers had not seen the questionnaire and had no knowledge of the 155 inmates, arguing that Rogers had “no factual basis to dispute” the methodology or conclusions of the Study. Id. At 38-41, 51. The Government also tacitly encouraged the Court to look beyond any flaws in the Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 16 of 18 9 The Court finds these results highly questionable given the extraordinarily high percentages, as well as the fact that the researchers saw a 2,369% increase “in the number of contact sexual offenses acknowledged by the treatment participants” during the course of the Study. Butner Study at 17. These astronomical figures lead the Court to question whether this unvetted prison Study, conducted by the former chief of the federal sexual offender treatment program and distributed by the Department of Justice to prosecutors, is, in actuality, a product of the tremendous “political pressure applied” to researchers in this research field. Tr. at 7, 45. 10 The Court believes that the adversarial process is the best means for ferreting out the truth, and without another expert to challenge Rogers, any weaknesses in his testimony may not be revealed. Thus, the Court hesitates to simply accept his testimony. -17- Study because it was “exploratory,” a “first step” that the authors believe to be the “tip of the iceberg.” Id. at 51. The Court, however, finds neither of these argument persuasive. The Court agrees with Rogers’ testimony that it was the duty of the researchers to be transparent and to fully incorporate their methodology and conclusions into the Study so that other independent researchers could verify the reliability of the Study. Id. at 42. By failing to disclose this information, the researchers failed to meet the “standard in scientific research” and failed to produce a study upon which the Court can rely. Id. The Court will not accept “science” conducted in secret. Second, the Court will not look past the shortcomings of this Study merely because the Study is unique or new. Indeed, the fact that the Study is revolutionary in nature gives this Court great pause for concern, especially since it produced the sensational result that somewhere between 85% and 98% of child pornography collectors have personally molested children.9 In sum, the Court will not consider the results of the Butner Study unless and until either the Government or the researchers provide transparency for its methodology and a compelling explanation for its many apparent failings. While the Court is loathe to simply agree with a mostly unchallenged expert,10 the Court can find no error in Rogers’ conclusion that the Butner Case 4:07-cr-00127-RP-RAW Document 53 Filed 12/04/2008 Page 17 of 18 -18- Study “isn’t scientifically vetted, doesn’t meet scientific standards for research, and is based upon, frankly, an incoherent design for a study.” Id. at 33.
UNITED STATES OF AMERICA, **
MICHAEL PAUL JOHNSON, * SENTENCING MEMORANDUM
* OPINION AND ORDER