Refining Child Pornography Law: Crime, Language, and Social Consequences by Carissa Byrne Hessick

Author:Carissa Byrne Hessick
Language: eng
Format: epub
Publisher: University of Michigan Press
Published: 2018-05-15T00:00:00+00:00

B. Examining the Relative Seriousness of Possession

That some jurisdictions classify child pornography possessors the same as producers or distributors reflects a legislative determination that possession is as serious as producing or distributing child pornography. And when child pornography possessors spend more time in prison than those who sexually abuse children, it suggests that child pornography offenders are more deserving of punishment than child molesters. Both of these conclusions are difficult to accept.

It may be useful to draw analogy to drug policy to understand why these conclusions about child pornography possession are troubling. In the late 1980s, the federal government changed its enforcement strategy with respect to illegal drugs, focusing not only on drug traffickers, but also on drug users.20 The decision to target users has since been subject to significant criticism; in particular, critics question why resources are being used to arrest and incarcerate possessors and low-level dealers rather than Page 151 →focusing on trafficking “kingpins.”21 Focusing on drug possessors rather than major suppliers is inefficient because the money used to detect, arrest, and imprison a possessor results only in getting one “customer” off the street, rather than disrupting a supply chain to many customers.22 Perhaps because of this criticism, state and federal governments occasionally protest that they rarely target low-level drug users for prosecution.23

In contrast, the states and the Department of Justice have vigorously defended their strategy of prosecuting and imprisoning child pornography possessors.24 Government officials have offered a number of reasons why aggressive enforcement and severe punishment are appropriate in child pornography possession cases. Each of those reasons is addressed below.

Before discussing these three arguments in favor of targeting child pornography possessors, it is worth noting that the analogy between child pornography possessors and drug possessors is far from perfect. One obvious difference is that drugs can be produced, distributed, and consumed without harm to anyone except the consumer. The violence associated with the drug trade is a result of the illegal status of drugs, not an inherent aspect of the drugs themselves. In contrast, child pornography is created through the sexual exploitation or abuse of a child. Because the salient harms associated with drugs are internalized by drug possessors but the harms associated with creating child pornography are not internalized by possessors, one might argue that the arguments against pursuing a law enforcement strategy against drug possessors are not persuasive in the child pornography context.

The lack of external harm caused by drug possessors is certainly a good reason for punishing child pornography offenders more harshly than drug offenders. But it does not suggest that many of the criticisms about the incarceration of drug possessors and low-level dealers do not apply to child pornography crimes. In both the drug and the child pornography context, focusing on possessors and low-level distributors is not only less effective than targeting trafficking “kingpins,” but it also fails to target those individuals who are more blameworthy—that is to say, those who have committed a more serious crime.

Now let us turn to the major

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