I started debating this question privately with someone recently, and thought I'd address it publicly here.
I first thought about the phrase "victimless crime". The <first article I looked at on the subject>
convinced me that it's not really a useful concept. Sometimes we are concerned with an uncertain risk of creating a victim (say drunk driving), and other times the victim is the taxpayer. The phrase implies the law is unjust. Some laws are unjust, but it's better to discuss them on their own merits of harm, risk to others, what freedoms they curtail, and the costs of enforcement and investigation, etc.
I have argued <earlier> that laws against simple possession of CP are an unacceptable assault on civil liberties. Any benefit is not worth the right of people to be left alone, reading and looking at whatever they wish without government interference. In this, I agree with the position of the ACLU. But others do not, and think it is fitting to punish people for their private activities if they can trace harm to others.
Now suppose we (temporarily) turn away from what is legal and what isn't and address only what is right and wrong. This simplifies things enormously. We no longer deal with investigation, discovery, and determining guilt beyond a reasonable doubt. We don't have to deal with the stigma that comes from an investigation of innocent people.
Now we can just address what is right and wrong, given any particular situation.
So, what is the harm in watching CP? I have dealt with this topic before. What are possible sources of harm?
One occurs if the person viewing the CP has asked a producer to produce some new CP for him. That is morally egregious.
A victim can be harmed is if police seize a person's computer, discover the CP, and notify the victim that such a video has been found. I think this harm can be laid squarely at the feet of society in having passed the laws to allow or require this.
A victim can be harmed if the downloader finds a way to contact the victim and does so.
Another source of harm (not to the specific person in the CP) would occur if the person viewing the CP was as a result more likely to abuse a child. Research suggests at most a very small effect and the possibility that it actually <protects against hands-on child abuseinstead of increasing it>. What's more, this can be evaluated by an individual himself. If he is certain that he is not going to abuse a child, then it does not affect him. If he has previously abused a child, we and society might see this very differently.
There is harm if the downloader pays for it, and the money makes its way back to the producer, encouraging him to make more.
Another is if he indicates his approval by writing a message of encouragement. And another occurs if a person decides to host the CP or pass it along to others.
But the typical CP downloader does none of these things. All he does is download a file and look at it.
The path of direct harm that is asserted is that the person in the CP is distressed to know that others are out there looking at a record of her abuse for sexual satisfaction. How can the victim come to know this? Several of the ways above could lead to such knowledge, but the moral responsibility rests on the individual people who do those things.
The remaining path of harm is that the download will register in some fashion in web statistics. I can imagine that a victim would be more distressed to know that 1,000 people have downloaded the CP compared to 10. Yet of course 10 downloads from a given site means nothing, since the material could appear anywhere due to reposting and forwarding. This would be very hard to trace. It is safe to assume that the average person downloading CP (as opposed to part of some semi-private network) is going to be seeing files that are at large on the internet and have been seen 1,000 or more times. The incremental harm is extremely small.
In general, we only pass laws to protect people against significant harm. Laughing at someone's unusual appearance or clothing is quite likely to do harm in making them feel bad. But we don't make a law against it. The state doesn't get involved with that level of harm.
"Looking at CP is not a victimless crime" implies not only harm, but sufficient harm to justify it being a crime. It doesn't qualify. Why would someone think it does? Because they have this gut-level conviction that a pedophile fantasizing about children sexually is in and of itself a horrible thing, and they cling to any justification for making it a crime, however slim or far-fetched.
I have so far been focusing on the minimum, shared morality that we in a diverse society share, which assumes freedom unless we can find harm to others. This is the only morality that should guide the law.
Yet more extensive and rigorous moral codes guide the actions of most of us. This is a good thing.
I suspect that the vast majority of people find looking at child pornography highly offensive morally. Here is a comment on one of my earlier posts, from a pedophile who does not hate his attractions, is not opposed to private fantasizing about children, and has no problem with looking at virtual child pornography (with no real children in it):
"CP is wrong. Anyone who contributes to the harm of a child is evil. Even if it's the 1000th person watching abusive video and victim doesn't know. Even if they had been hurt 999 times, they wouldn't like to be abused for the 1000th time. Even if they didn't find out...This is a selfish view. People who care for others and don't want to do anything evil to anyone and are at least slightly altruistic won't do that."
This is a moral judgment shared by a great many people, including a great many pedophiles -- and including pedophiles who download CP and hate themselves for it. I suspect I share it at a gut level too.
If we replace the initial statement with, "Watching CP is morally wrong because good people don't benefit from the suffering of others" then it is in the realm of private individuals arguing for their own morality and trying to persuade others, which is totally appropriate. To be consistent, I think such an argument should extend to not enjoying "fail" videos of other people caught in embarrassing situations, and not enjoying a variety of news stories out of a prurient interest.
But "Looking at CP is not a victimless crime" when unpacked in the legal context relies on the minimum shared morality of harm. This is virtually nonexistent in the typical case, and the statement is wrong.
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