Child pornography is a serious criminal offense that causes immediate and profound revulsion. Make no mistake about that.
The recent U.S. Senate confirmation hearings relating to Judge Kenji Brown Jackson’s nomination to the U.S. Supreme Court created the impression that this country is undergoing a “sickening child porn crisis.” Several senators went as far as to suggest the judge was sympathetic to child pornography offenders, which was disingenuous and disgusting.
Federal Child Pornography Offenses
Child pornography is a sex offense. Federal law, 18 U.S.C. Section 2252(a)(1)(A), defines this sex offense as the possession of images or videos of a minor engaging in sexually explicit conduct.
But what constitutes “sexually explicit conduct?”
18 U.S.C. Section 2256(2)(A) provides three specific types of sexual behavior that constitutes sexually explicit conduct:
- Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
- Graphic or lascivious simulated bestiality, masturbation, or sadistic or masochistic abuse; or
- Graphic or simulated lascivious exhibition of the genital or pubic area of any person.
The penalty for the possession of child pornography, the lowest level of child pornography laws, is capped under18 U.S.C. Section 2252 (a)(4) at ten years unless the sexual images involve a prepubescent child or a child under the age of twelve, which then caps the penalty at twenty years.
Second, there are three other higher levels of child pornography: receipt, production, and distribution of child pornography. They each add serious mandatory minimums and severe maximum ranges of punishment.
Most child pornography ends up in the hands of the individual through a download from the internet with a computer. Thus, in most cases, the individual receives and possesses child pornography with the same actions on a computer. A federal prosecutor has discretion to charge the individual with either receipt or possession or with both as distinct offenses. The illegal pornography is initially received with the computer and then “stored” on the computer, constituting possession.
Receipt vs. Possession
The problem here is that 18 U.S.C. Section 2252 penalizes receipt more severely than possession. Under Section 2252 (b)(1), receipt carries a 5-year mandatory minimum and a maximum of 40 years. The stark difference between the penalties for receipt/possession gives federal prosecutors unfair leverage to force guilty pleas to possession, where the judge has some sentencing discretion as opposed to receipt, where the judge must impose the mandatory 5-year minimum.
Production of Child Pornography
Production of child pornography is charged under 18 U.S.C. Section 2251, the federal “child exploitation” statute. Child exploitation under 2251 is persuading, inducing, enticing, or coercing a child under 18 years of age to engage in sexually explicit conduct to produce a visual image of that conduct, regardless of whether the person taking the visual image knows the child’s age.
Under Section(e), production of child pornography carries a mandatory minimum sentence of 15 years to a maximum of 30 years which can morph into a 25-year minimum to a 50-year maximum or even into a life without parole sentence depending on the criminal history of the offender.
18 U.S. Section 2252(a)(2) defines the distribution of child pornography as the knowing distribution of any visual depiction of child pornography using any means or facility of interstate or foreign commerce by computer or mail. Distribution of child pornography under this Section(b) is punishable by a 5-year mandatory minimum to a 20-year maximum that can be increased to 40 years depending on the defendant’s criminal history and the nature of the images distributed.
Under the U.S. Federal Sentencing Guidelines, all these offenses allow for increases in the sentencing level based upon:
- age of minors depicted;
- relationship to minors depicted;
- number of images of children under 12;
- sado-masochistic content;
- total number of images; and
- use of a computer.
That’s the law, but what about the facts?
Senators Focus on Child Pornography
No one in this country was quite prepared for how the child pornography issue would dominate Judge Jackson’s confirmation hearings. It was a shameful display of partisan politics at its worse. Right-wing Republican lawmakers repeatedly tried to cast Judge Jackson—the first Black American woman nominated to the nation’s highest court—as being soft on child sexual predators in light of her sentencing decisions in less than a half dozen of those kinds of cases.
The confirmation hearing speeches given by these senators created the impression that there is a child pornography crisis in the U.S. today and that the judge was unusually lenient on this class of defendants. Nothing could be further from the truth.
In 2020, some 64,565 offenses were reported to the U.S. Sentencing Commission (USSC), of which only 1,043 involved child pornography offenses. In fact, the USSC report noted that child pornography offenses have decreased by 38% since 2016. These factual findings were shared with each of the Republican senators who relentlessly grilled Judge Jackson on the child pornography issue.
But there is a child pornography crisis with politicians and public servants.
Instead of trying to impugn the admirable character of Judge Jackson, these Republican lawmakers should have been investigating why so many of their fellow public servants have been convicted of sex crimes, including child pornography-related offenses.
In 2017, The Daily Beast reviewed public records and reports, finding that at least 22 federal, state, and local officials had been convicted of child pornography-related offenses. The media outlet described it as “sickening child porn crisis infecting U.S. government agencies.”
The Daily Beast report also went on to chronicle sex offense crimes committed by the highest levels of national security officials—the rape of a Muslim woman by a C.I.A. station chief; six former Homeland security employees convicted of human sex trafficking, possession of child pornography, and soliciting sex with minors; and the director of cyber security with the U.S. Department of Health and Human Services for his role in a child porn ring.
Two years later, the Associated Press reported that between 2017 and 2019, some 90 state lawmakers—many of whom were Republicans—faced public allegations or political repercussions for sexual misconduct, including with children.
With documented sexual misconduct involving public officials, Republican and Democrat alike, the senators who brutally attacked Judge Jackson would likely serve the public more by examining their own personal and political computers. Given the obsession with child pornography, one can conclude that the senators “doth protest too much…”
The child pornography issue used against Judge Jackson has about as much credibility as other unhinged ideas supported by some lawmakers: QAnon is the gospel of truth, pedophiles are in pizza parlors, the Capitol rioters are “patriots,” J.F.K. is returning from the dead, the Kraken is alive and well, the Proud Boys and Oath Keepers are shining beacons of democracy…
The “flat earth” crisis facing America today is a real threat to our country and the future of our democracy, not some hyped-up falsehoods used to disparage political opponents and dedicated public servants.