UNITED STATES SENTENCING COMMISSION HEARING

ON THE 25TH ANNIVERSARY OF THE PASSAGE OF THE SENTENCING REFORM ACT OF 1984

DENVER, COLORADO

OCTOBER 20, 2009

Mr. Chairman, members of the Commission, I appreciate the opportunity to testify regarding the sentencing guidelines for child pornography offenses. 

For the past nine months, this Commission has heard testimony from judges, prosecutors, defense counsel, and issue experts.  Some have argued that the guidelines for child pornography offenses are baseless, excessive or too severe.  In the aftermath of the Booker decision, we are seeing increasing examples of downward departures from the guidelines and token sentences for child pornography offenders. 

I come before you today to make a simple point.  Child pornography is a serious crime.  It merits serious penalties.  The guidelines are not the problem.  The problem is the lack of understanding of the true nature and severity of this crime, and the harm caused by these offenders.

At the National Center for Missing & Exploited Children, we have been battling this problem for a quarter century.  The Center is a nonprofit organization working in partnership with the U.S. Department of Justice.  In 1985 we launched the first child pornography tipline.  In 1998 at the request of Congress, we created the CyberTipline, an online reporting mechanism for child sexual exploitation.  To date, we have handled 744,000 reports from Internet Service Providers and the general public.   

In the aftermath of the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, we created the Child Victim Identification Program in 2003 to assist law enforcement and to identify, locate and rescue child victims.  In the past six years we have reviewed 28 million child pornography images and videos, currently 250,000 per week. 

Child pornography is misnamed and misunderstood.  It is not pornography.  It is not protected speech.   It is not victimless crime.  These are crime scene photos, images of the sexual abuse of a child.  They are contraband, direct evidence of the sexual victimization of a child.  The circulation of these images among offenders not only revictimizes the child, but it also drives the market for the production of new images. 

Some have said, “child pornography, isn’t that just adult pornography, 20 year olds in pigtails made to look like they are 14?”  Well, not exactly.  From the millions of images we have reviewed and the thousands of children we have identified, we have learned that most of the victims are prepubescent, and that a growing number are infants and toddlers.

 Many of these children are being abused violently in images depicting bondage, sadism, torture, vaginal, anal, and oral penetration, bestiality, and sexual humiliation. Offenders tell us that the growing demand for very young children is because they are pre-verbal.

Most offenders have not innocently or mistakenly downloaded a single image or even a handful of images.  We find offenders who build libraries of child pornography images, collected and viewed for the offender’s personal sexual gratification and, more commonly, traded, shared, and/or sold online. 

The Supreme Court has long recognized the harm.        

In New York v. Ferber, the Court wrote, “pornography 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.”

The Supreme Court wrote those words in 1982 before the birth of the Internet.

In Osborne v. Ohio, the Court wrote that “the victimization of children does not end when the pornographer’s camera is put away. . . . The pornography’s continued existence causes the child victims continuing harm. . . .”)

In United States v. Norris, the Court said, “the sheer number of instances in which a child’s pornographic image may be possessed and distributed in the indelible context of the Internet is incalculable.  Even after a single offender is prosecuted, the images they traded, sold, or posted online continue to circulate to ever widening circles of offenders.” 

Each viewing, each possession, each redistribution of an image revictimizes that child anew.  In a victim impact statement cited in US v. Ward, the victim said, “when I was told how many people have viewed these images and videos I thought my pulse would stop.  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.” 

Like any other contraband, child pornography images are an illegal commodity that must be combated both at the point of production and at the point of distribution and possession. 

In Ferber, the Court said, “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.” 

In Osborne, the Court said, “it is 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.”

Some have argued that the sentences for many of these offenders are excessive because “they just look at the pictures.”  Many judges today are sentencing offenders well below the guidelines because they are “mere possessors.” 

We are deeply skeptical.  In a 2009 article in the Journal of Family Violence,  Michael Bourke and Dr. Andres Hernandez at the Federal Correctional Institution at Butner, North Carolina reported on a study comparing two groups of child pornography offenders.

The first group included men convicted of child pornography possession, receipt or distribution, but no “hands-on” sexual abuse.  The second included men convicted of similar offenses but with documented histories of hands-on sexual offenses against children.

The researchers found that the Internet offenders in their sample were “significantly more likely than not to have sexually abused a child via a hands-on act.”  And that these offenders tended to have multiple victims.

They found that, upon being discovered, these offenders tend to minimize their behavior. They accept responsibility, but only for those behaviors known to law enforcement.  They hide contact sexual crimes to avoid prosecution and to avoid shame and humiliation.

The researchers also found that online criminal investigations, while targeting so-called “Internet sex offenders,” are resulting in the apprehension of child molesters who just happen to be using the Internet to access this content.

We don’t know with certainty whether the number of child pornography offenders who commit physical contact offenses against real children is 40%, 60% or 80% of the total offender population.  However, we know that a large share of that population is not merely “looking at the pictures.”

We also know that the number is far greater than publicly recognized because few of the victims tell anybody.  Researchers now estimate that 1 in 3 victims of child sexual abuse report it.  That represents significant progress over even a decade ago.  However, what we are seeing today is that when there is a photo or video that memorializes that abuse, reporting drops precipitously.  These children don’t tell.

Even if the offender cannot be shown to have victimized a real child, he is revictimizing the child in that photo or video.  Victims of online child pornography must deal with the permanency and circulation of the images of their sexual abuse.  Once an image is on the Internet it can never be removed and becomes a permanent record of the abuse. 

Researchers studying the harm caused to a child report that child victims experience depression, withdrawal, anger, and other psychological disorders that can continue well into adulthood.  They frequently experience feelings of guilt and responsibility for their abuse as well as feelings of betrayal, powerlessness and low self-esteem. 

For children whose images are circulated online, their abuse is repeated over and over through each new viewing.  They feel there is nothing they can do to prevent others from viewing the images, and they express concern that images of their abuse may be used to entice or manipulate other children into sexually abusive acts.   

Congress has long recognized the harm child pornography inflicts on its victims.  In passing the Child Pornography Prevention Act of 1996, Congress found that “[t]he use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child.”  In 2006 Congress passed the Adam Walsh Child Protection and Safety Act, which concluded that “technological advances have had the unfortunate result of greatly increasing the interstate market in child pornography”; and “every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.”

The Supreme Court, Congress and this Commission have recognized the extreme harm inflicted upon victims of child pornography, harm that is compounded when the images are recirculated.  Yet, we are witnessing increasing instances of downward departures from the guidelines, or token sentences for offenders, simply because there is no proof of physical contact offenses against a child.  Congress did not base its enactment of these laws on the assumption that all offenders must be abusers.  The goal of these laws is to address this growing and deplorable form of child sexual exploitation, and stop it.

Weakening the guidelines will do irreparable damage to the goal of stopping child pornography and will put countless children at risk.  It will also dilute the objective of deterrence at a time when technology is emboldening these offenders. 

We urge the Commission to resist the clamor for change, and help us wake up the nation, its policy makers and its judges about the true nature and impact of this crime.  The National Center for Missing & Exploited Children is committed to doing everything in its power to eradicate child pornography, and is deeply grateful for this opportunity to share its views with the Commission.

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