I have over the years taken different angles in support of one central point: our society's criminal penalties for passive child pornography possession are far too severe. My next blog post will cover the next angle I have found: funding. But in this post I want to summarize the situation to date.

Some justifications for the serious penalties for CP possession can be dismissed by two separate levels of argument. The evidence of a relationship is itself weak, but even if the evidence were sound, nowhere else in the law would the penalties be comparable:

1. The idea that CP viewing can stand in for the crime of hands-on sexual abuse. Suppose we accept the highest estimate that 50% of CP viewers have committed hands-on offenses: Nowhere else in the law do we penalize something that is correlated with a crime we care about. Gang symbols are highly correlated with gang-related violent crime. We might prohibit gang symbols or paraphernalia in schools, but we never send someone to prison for having them.

2. The idea that CP viewing leads to hands-on offenses. The evidence is very weak, but also: Some extremists have argued that ordinary adult porn leads men to rape women, but their suggestion is that we might make such porn illegal -- even the extreme view does not suggest that we should send to prison any man who was subsequently found in possession of any.

3. The idea that passive viewing somehow creates a market encouraging more production. It may have been true 30 years ago, but it isn't any more. What's more: Explicit, detailed news coverage of terrorist acts clearly creates a market for more -- what terrorists want is news coverage. Yet few people feel guilty for watching such coverage, nor suggest we boycott news outlets that provide it -- and no one suggests a law banning such detailed coverage.

Ultimately, support for draconian penalties for CP possession comes from a different place. It starts with the truth that child sex abuse is a serious crime calling for serious criminal penalties. Behind those crimes is the alien 'other' -- the pedophile. He is defined in the public mind solely by the fact that he molests children. As such, he deserves punishment just for existing. If he is found looking at CP, he is linked (by association rather than careful thought) back to the children who suffered in the creation of that CP, as the cause of that suffering. Our sympathy for the victims in those CP videos is brought forth to justify the CP viewer's years in prison. But that's not really the story, since a pedophile is subjected to similar penalties for looking at virtual child pornography made without any children, for looking at cartoon drawings, or (except in the US) for reading erotic stories.

Other assumptions around CP viewing typically include: The man approves of the fact that the child was molested and is only envious that he wasn't there to do it himself. He enjoys the very fact that the child is suffering -- there is an element of sadism. He feels no hint of shame. All of these are false in the vast majority of cases.

Let's start from the other end. A teen boy discovers he is attracted only to children. He is horrified. Society tells him he is destined to molest a child. He is likely to agree that anyone who molests a child is the scum of the earth, so he is inclined to agree he is the scum of the earth based on what they assure him he will do. More than a few teens kill themselves. If they reveal in a suicide note the reason, it is likely to be suppressed because of the shame that would accrue to his family. He also will find it extremely hard to talk to anyone about this, perceiving correctly that most people will not listen to him with compassion but condemnation. In recent years he has the additional very realistic fear that he will be reported to police based on mandatory reporting laws for nothing but his attractions. Professionals have a duty to report if they believe children are in danger. Many have been taught that all pedophiles eventually molest children, so it takes very little more than the attraction to make them file a report.

Somehow he makes it through those early years, still determined never to molest a child, but endowed with the same sexual drive as any other young man. Some of those ordinary young men will approach and date girls (or boys), or perhaps visit prostitutes. Those who can't (and even those who can and do) will also seek out pornography. In this day and age a flood of ordinary porn is available to young men, and most of them look at it and masturbate to it.

What does a pedophile do? One thing he might well do is look for some child pornography -- pictures of children being sexual in exactly the ways he would (at a gut level) like to be sexual with them. The child in the video may have suffered, but it is in the past, and he knows that his clicking and looking does not make the child suffer all over again. He knows he is not really hurting anyone. Nonetheless, he is also very likely to feel ashamed just for doing that -- he condemns himself just as society condemns him. Yet his sexual desire remains strong, and he may repeatedly give in to this desire in a way that fundamentally does not harm anyone.

When young men harm others in fairly minor ways, the law applies fairly minor penalties. Breaking into houses, stealing cars, fighting and beating people up, groping women on the subway -- first offenses are likely to call for probation. Prison sentences for subsequent offenses are likely to be short. In contrast, the CP viewing that did not harm anyone gives rise to longer penalties and several years on a sex offender registry, which is a penalty that in many cases ruins a person's life -- having nowhere to live and being unable to find employment are pretty much a ruined life. This difference in penalties with crimes that do cause real harm is profoundly unfair.

To be clear, there are things a pedophile might do where justice calls for serious penalties. Molesting a child is the most obvious one. You could make a case for penalties if someone pays for child pornography, or perhaps even if they give effusive praise to a maker of child pornography. But passive downloading and viewing has but one effect in the real world -- increasing a hit count somewhere. It simply does no harm.

A pedophile feels an attraction that is alien to many people, but it is one he did not choose and cannot change. He shares society's horror at child molestation and makes sure he doesn't do that. Then he does the same thing other young men do who can't find suitable partners -- he looks at pornography in line with his desires.

I'm certainly not saying looking at CP is just fine. It is morally problematic. But it is less problematic than groping women on the subways, breaking into people's houses and stealing things, or beating people up. Harsher penalties for simply looking at CP are an utter travesty of justice. 


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