Miscellany:Legalization of child pornography possession and distribution
|This was originally posted to Larson for Delegate.|
In 2016, the Virginia General Assembly considered two bills, SB 1278 and HB 2039, to revise the sentencing guidelines to double the criminal penalties judges are to impose on defendants convicted of possessing child pornography. It was good that these bills were defeated.
One of the main arguments for punishing these offenders harshly is that possession of child pornography leads to child abuse. Actually, the evidence suggests the opposite. A 2010 study by Milton Diamond from the University of Hawaii found that when child pornography was legalized in the Czech Republic, rates of child sexual abuse fell. Similar results were found in Japan and Denmark, two other countries were child pornography was legal. A 2011 article by Jones and Finkelhor noted that "rates of child sexual abuse have declined substantially since the mid-1990s, a time period that corresponds to the spread of CP [child pornography] online."
Federal judges are refusing to apply the harsh child pornography sentencing guidelines Congress imposed. In more than 40 percent of federal child pornography cases, judges have granted leniency, sentencing defendants to below-guideline prison terms or even giving probation, according to the U.S. Sentencing Commission. We can expect that, likewise, if Virginia legislators tamper with the sentencing guidelines, many judges will exercise their discretion and refuse to apply the new guidelines. This is with good reason, since sentencing guidelines are supposed to tell judges what sentences other judges actually are imposing on defendants with similar records who committed similar crimes, rather than what sentences legislators think they should impose.
Part of the problem with Virginia's child pornography laws is that they define child pornography using vague terms such as "a lewd exhibition of nudity". Many Virginia families have nude photos of children in their scrapbooks, or home movies involving children running around naked, so this provision potentially puts them at risk.
I would even say that child pornography possession and distribution should be legalized. I agree with the dissent in the landmark child pornography case Osborne v. Ohio, 495 U.S. 103 (1990), in which Justices Brennan, Marshall, and Stevens noted, "When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne's pictures may be distasteful, but the Constitution guarantees both his right to possess them privately and his right to avoid punishment under an overbroad law."
I also agree with the sentiment expressed in Stanley v. Georgia 394 U.S. 557 (1969), "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."
My attitude is that information wants to be free, even if that information consists of images of children being horrifically assaulted. These are crime scene photos that, like any other evidence, should be considered part of the public record for purposes of transparency and accountability. This is in keeping with the spirit of the Sixth Amendment guarantee of a public trial. In the event the perpetrators of sexual assaults against children have not yet been apprehended, the pornographic images they have created can sometimes provide clues that can be helpful in tracking them down and bringing them to justice.
Whitney Cummings once said, "Porn isn't bad. Men watching porn is like women watching The Food Network: we're both watching things we're never going to freaking do." Feminists led the efforts to ban child pornography in the late 1970s, and will continue trying to demonize men for indulging their curiosity in, or getting aroused by, "deviant" forms of sexuality, and for exploiting women, even as women (especially feminist women, who often are excited by rape fantasies — not that there's anything wrong with that) indulge in their own violent, sadomasochistic pornography by reading Fifty Shades of Grey. It's hypocritical and a double standard.
If anyone wants to argue, "When women have rape fantasies, that doesn't mean they actually want to be raped," I would say, "By that same logic, couldn't we say that not every man who looks at child pornography wants to have sex with kids?" But in reality, what people fantasize about, they often think would be kinda fun to actually do in real life. Maybe their morality, or limited power to do as they please, holds them back from actually doing it, but still, fantasy is usually an escape from reality into something better (whether because it's more interesting, or more pleasing, or whatever).
Some argue that child porn should be banned because it is used to groom children for sex, but in Ashcroft v. Free Speech Coalition, the Court ruled, "The contention that the [Child Pornography Prevention Act] is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."
By the way, I think it will be very interesting to see what happens in coming decades when people like "Amy," depicted in the Misty series, die. It will at that point not be possible to argue that she is still being victimized by the distribution of those images, so I wonder what effect that will have on the child porn legalization debate, and on sentencing hearings concerning those images.
Psychiatric and sociobiological arguments
Feminists have even gotten porn involving 17-year-old girls declared "child pornography," despite the fact that these girls would, until very recently, have been considered nubile (i.e. of marriageable age), rather than children. It is just another way of shaming men for having normal sexual desires. Young women are at the peak of their fertile years, so it is natural for men to want to have sex with them, and understandable that some men would resort to pornography as a more easily obtainable substitute.
In a way, it shouldn't be all that surprising that some men want to have sex even with girls who haven't reached puberty. There are, after all, men who will have sex with women (e.g. the wife they've been married to for 30 years) who are so old as to be infertile, so why wouldn't there be men who would have sex with girls who are too young to be fertile? It's been theorized that sex serves a number of purposes besides reproduction (for example, giving couples another reason to stay together to raise their children). It doesn't seem all that farfetched that, in the race among men to be the first to get the youngest and freshest girls as they come on the market, some men would end up going so far as to go for prepubescent girls, erring on the side of too young rather than too old.
There's also Rule 34, "If it exists, there's porn of it"; for whatever reason, the human mind seems to have a limitless ability to fetishize anything. "Normal" people download videos of bukkake and Roman showers, yet somehow child porn is deviant? These distinctions are political, not scientific. As Darian Meacham's Medicine and Society, New Perspectives in Continental Philosophy notes, "Immediately after the APA board's decision to delete homosexuality from their manual, Irving Bieber publicly asked Spitzer whether he would consider deleting other sexual deviations from DSM, too. Spitzer answered: 'I haven't given much thought to [these problems] and perhaps that is because the voyeurs and the fetishists have not yet organized themselves and forced us to do that'."
It also shouldn't be too surprising that some men are attracted to young boys. According to the Super Gay Uncles Theory, one reason for homosexuality's existence might be so that there are extra men around to provide nurturance to children in their extended families. Wouldn't pedophilic desires for boys tend to create an incentive to provide even more nurturance, as a form of child grooming (which some pederasts have likened to heterosexual dating, in which the wealthier older man pays for the dates)? This is the basic thrust of the classic essay, The Descent of Chester.
I'm not aware of any more plausible explanation for how pedophilic desires would have evolved. The research by James Cantor suggesting that pedophiles tend to have lower IQs (and thus perhaps have genetic abnormalities) are based on clinical samples of convicted sex offenders rather than the general population of pedophiles. As Cantor admits, it is not easy to identify pedophiles, even for purposes of figuring out how many there are in the general population: "Because paedophilia is so secretive and so few people are willing to admit it, there is no meaningful way to get a reliable estimate . . . There's no meaningfully ethical way of taking 200 men, hooking them up to detectors, showing them pictures of adults and children and seeing how many respond most to children."
But from the studies that have been done, it does seem that pedophilic desires are common in the male population. As Richard Green notes in "Is Pedophilia a Mental Disorder?" (Archives of Sexual Behavior, Vol. 31, No. 6, December 2002, pp. 467–471):
In a sample of nearly 200 university males, 21% reported some sexual attraction to small children, 9% described sexual fantasies involving children, 5% admitted to having masturbated to sexual fantasies of children, and 7% indicated they might have sex with a child if not caught (Briere & Runtz, 1989). Briere and Runtz remarked that “given the probable social undesirability of such admissions, we may hypothesize that the actual rates were even higher” (p. 71). In another sample with 100 male and 180 female undergraduate students, 22% of males and 3% of females reported sexual attraction to a child (Smiljanich & Briere, 1996). . . . .
Laboratory researchers have validated physiologically the self-report studies of nonclinical, nonpedophile-identified volunteers. In a sample of 80 “normal” volunteers, over 25% self-reported some pedophilic interest or in the plethysmographic phase exhibited penile arousal to a child that equaled or exceeded arousal to an adult (Hall, Hirschman, & Oliver, 1995). In another study, “normal” men’s erections to pictures of pubescent and younger girls averaged 70 and 50%, respectively, of their responses to adult females (Quinsey, Steinman, Bergersen, & Holmes, 1975). In a control group of 66 males recruited from hospital staff and the community, 17% showed a penile response that was pedophilic (Fedora et al., 1992).
Freund and Watson (1991), studying community male volunteers in a plethysmography classification study, found that 19% were misclassified as having an erotic preference for minors. Freund and Costell (1970) studied 48 young Czech soldiers who were shown slides of children between 4 and 10, both male and female, as well as adolescents and adults, male and female. Penile responsivity to female children, ages 4–10, was intermediate to adolescent and adult females and males in one scoring system. In the other scoring system, all 48 soldiers showed penile response to adult females, as did 40 of 48 to adolescent females, and notably, 28 of 48 showed penile response to the female children age 4–10.
The state would go bankrupt if it tried to incarcerate all the men who are aroused by the thought of sex with children. Many families have been torn apart by the incarceration of family members who broke the child pornography laws, but would not have done any harm to anyone. This must stop.
Some may argue that the Bible says, "Ye have heard that it was said by them of old time, Thou shalt not commit adultery: But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart" (Matthew 5:28). It seems likely that this is just a restatement of Exodus 20:17, "Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass." In other words, it is a command against lusting after married women.
The Bible puts no age restrictions on sex, and has no command against a man's having sex with an unmarried virginal women who is not betrothed, as long as they marry afterwards (Exodus 22:16): "And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife." If the behavior itself is not sinful, then the thought of it is not sinful either.