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Refining Child Pornography Law

Refining Child Pornography Law: Crime, Language, and Social Consequences OPEN ACCESS

Edited by Carissa Byrne Hessick
Copyright Date: 2016
Pages: 312
Stable URL:
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  • Book Info
    Refining Child Pornography Law
    Book Description:

    The legal definition of child pornography is, at best, unclear. In part because of this ambiguity and in part because of the nature of the crime itself, the prosecution and sentencing of perpetrators, the protection of and restitution for victims, and the means for preventing repeat offenses are deeply controversial. In Refining Child Pornography Law, experts in law, sociology, and social work examine child pornography law and its consequences in an effort to clarify the questions and begin to formulate answers. Focusing on the roles of language and crime definition, the contributors discuss the increasing visibility child pornography plays in the national conversation about child safety, and present a range of views regarding the punishment of those who produce, distribute, and possess materials that may be considered child pornography.

    eISBN: 978-0-472-90064-0
    Subjects: Law
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Table of Contents

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  1. Introduction (pp. 1-16)
    Carissa Byrne Hessick

    When Attorney General Edwin Meese published his report on pornography more than twenty-five years ago, he could not have known how much computers and the Internet were going to affect child pornography. Technological advances have led to a proliferation of child pornography images. Technology has also wrought significant changes in the detection and prosecution of child pornography crimes. Simply put, the past twenty years have seen a child pornography revolution.

    In the decades since child pornography first came to the attention of the American criminal justice system, it has been the subject of many state and federal laws and a...

  2. Part I. Defining Child Pornography Crimes
    • A. Constitutional Issues
      • James Weinstein

        InNew York v. Ferber, the United States Supreme Court held that child pornography—visual depictions of actual children engaged in explicit sexual conduct—was categorically devoid of First Amendment protection.¹ Most of this chapter will be devoted to a detailed discussion ofFerberand its progeny, includingFerber’s revival of a discredited free speech methodology and its reliance on a rationale that avoided consideration of the effects of child pornography on the viewer. But before focusing directly onFerber, it will be useful to locate this decision in the vast expanse of the Court’s free speech jurisprudence. So contextualized,...

      • Carissa Byrne Hessick

        Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, those protections do not apply to child pornography. But in exempting child pornography from First Amendment protection, the Supreme Court has failed to clearly define child pornography as a category of speech. Providing a precise definition of the child pornography exception to the First Amendment has become increasingly important because, in recent years, prosecutors across the country have used child pornography laws expansively to reach broader and broader sets of behavior.

        Most visibly, some prosecutors have elected to charge teenagers with child pornography offenses for creating...

    • B. Consequences of the Legal Definition
      • Amy Adler

        This chapter considers a pivotal but deeply problematic aspect of the defi-nition of “child pornography”: the six factor “Dosttest.”² Although never considered by the Supreme Court, theDosttest, developed by a California district court, has become a key feature of child pornography law, adopted by virtually all state and lower federal courts as part of the definition of child pornography. Despite the near universal adherence toDost, however, I argue that deep and unrecognized problems plague the test. Through a close reading of decisions applying theDostfactors, I show that these cases reveal startling uncertainties at the...

      • Mary Graw Leary

        Language matters. Words matter. Labels, pedantic as they can be, matter. They matter because they convey not only meaning, but also tone, significance, and content. This is particularly true in the law, where definitions can represent the difference between a crime and a legal act, and where the wording of jury instructions can be the difference between acquittal and conviction. The need for precision takes on even more significance for subjects that implicate but are not exclusively limited to the law, such as child exploitation. The importance of such topics extends beyond the law, into fields such as medicine, social...

  3. Part II. Refining Child Pornography Law
    • A. The Special Case of Possession
      • Carissa Byrne Hessick

        Recent years have seen a significant increase in the number of prosecutions for possessing child pornography, as well as an increase in the criminal penalties for that crime. The decisions to increase the number of prosecutions and the length of sentences are, at bottom, decisions to invest more criminal justice resources in the detection, prosecution, and punishment of those who possess child pornography. Although these decisions are often touted as decisions that protect children, this chapter questions whether the American criminal justice system ought to prioritize child pornography possession over other crimes in the fight to eliminate child sexual abuse...

      • Audrey Rogers

        This chapter addresses the harm inflicted by child pornographers on their victims. It discusses both the producers and nonproducers or downstream users of pornographic images, describing the different and similar harms their actions inflict. The chapter begins with definitions of the various actors involved in child pornography, because current law ties harm and punishment to these categories. It explains the historical development of the different categories of downstream actors in the child pornography market and their concomitant sentencing structure.

        The chapter then identifies the ways technology has blurred the categories of pornographers so that different punishment among nonproducers has become...

      • Paul G. Cassell, James R. Marsh and Jeremy M. Christiansen

        The severity of criminal penalties for possessing child pornography has recently come under attack. Both judges and academic commentators have been heard to complain that the prison sentences for child pornography possessors are too long. Implicit in these criticisms is often the claim that possessing child pornography is not a serious crime—that while those who create (or perhaps distribute) child pornography inflict severe harms on their child victims, those who merely possess images are not significantly blameworthy. Indeed, in a case that recently attracted national attention, a man who was convicted of child pornography possession (possessing images of children...

    • B. Child Pornography Definitions at Work
      • Wendy Walsh, Melissa Wells and Janis Wolak

        The prosecution of child pornography possession and production has increased in recent years, as the Internet has enhanced its availability and law enforcement has refined its techniques for its detection. Given the growth and complexity of child pornography crimes, it is critical to better understand the nature of these crimes as well as dilemmas and challenges law enforcement investigators and prosecutors encounter. Those dilemmas include the consistency of legal standards, problems with statutory frameworks, and the suitability of the punishments being sought. Law enforcement and prosecutors have also faced challenges related to the legal definition of child pornography. In particular,...

      • Troy Stabenow

        Federal law requires each judge to give careful consideration to something called the Federal Sentencing Guidelines. On the surface, these guidelines appear to sort child pornography offenders into clear categories based on the type of crime each committed and the various circumstances surrounding their crimes. In reality however, the guidelines result in dubious distinctions between similar offenders, resulting in enormously different sentences for defendants with comparable levels of culpability. The various circumstances the guidelines use to increase punishment apply to nearly all defendants, but even worse, they are largely unsupported by empirical study or common sense. This chapter will highlight...

      • Melissa Hamilton

        The moral panic over sexual predators targeting young children is often expressed in the punishment of child pornography offenders. The federal government’s involvement began with its seminal statute criminalizing the commercial production of child pornography in the Protection of Children Against Sexual Exploitation Act of 1977.¹ Since then, Congress has continued to express concern that child pornography remains a national problem that harms children and society.² To that end, Congress has enacted numerous additional criminal statutes to cover nonproduction acts such as transportation, distribution, receipt, and possession of child pornography.³ Leveraging its constitutional power to regulate interstate commerce, the federal...

Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International
This book is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.
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