While allegations of child pornography do cause an immediate feeling of repulsion and fear in most people, it is vitally important for defense lawyers to maintain their objectivity in these often disturbing cases.
In far too many cases, the defense lawyers themselves become ensnared in their own prejudices and, like most other normal people, assume their client’s guilt and acquiesce to severe punishment. This is a fatal mistake that all too often leads to either a wrongful conviction or a sentence that is much more severe than necessary.
While the First Amendment protects extreme speech and sometime foul artistic expression, it does not protect images of child pornography.
Both Federal and state laws prohibit the production, distribution, reception, and possession of child pornography. But what is child pornography?
Child pornography is defined by Section 2256 of Title 18, United States Code.
This legal definition prohibits the visual depiction of sexually explicit conduct involving a minor. Federal law defines a minor as someone under 18 years of age. The definition of sexually explicit conduct does not require an image of a minor actually engaged in sexual activity. If sufficiently sexually suggestive, the mere image of a naked child may constitute child pornography under federal law.
Six different federal laws govern child pornography in this country. Punishment under these statutes can, and usually is, quite severe. Each image of the receipt, distribution, possession with intent to distribute, transporting, or its production requires a mandatory minimum of five years. Punishment for child pornography offenses has increased by as much as 500 percent over the past decade. Many sentences for child pornography exceed those imposed for crimes of violence, such as murder and rape. That’s because a first offense for the production of child pornography requires a mandatory minimum of 15 years to 30 years in prison. The statutory and U.S. Sentencing Guidelines governing punishment of child pornography offenses has forced 71 percent of U.S. District Court judges to believe the sentences for these offenses are too severe.
Today the average sentence for federal child pornography offenders range from 95 to 118 months, as compared to 20 months in 1997. Most federal child pornography offenders have no prior criminal record at the time of sentencing.
The punishment ramifications for child pornography offenses do not end with imprisonment. Federal and state laws require that these offenders register as “sex offenders” on public registries. Sex offender registration has draconian implications. It makes finding employment and housing virtually impossible. It places both the offender and his/her family as risks from vigilantes and social extremists.
Today there are more than 750,000 registered sex offenders in this country, some of whom must remain registered for the rest of their lives.
Child pornography has become a dangerous social phenomena in this nation, not only for the damage it does to our children, the victims of the offense, but also for the horrendous impact it has on the offenders who get caught up in this compulsion. Even the mere possession of this material, without any criminal history or allegation of reaching out to a real child, can lead to decades in prison. It has become one of the most aggressively investigated and severely prosecuted crimes in the federal justice system.
Given the severe reactions caused by the mere mention of child pornography, defense lawyers must be committed to mounting a thorough factual investigation, including forensic analysis of computers and media, along with a complete psychological evaluation and treatment when indicated, to insure that those caught up in the dangerous arena are not convicted wrongly or punished unfairly.