RECOMMENDATION 45

Part: 
Three
Chapter: 
3

State legislatures should amend laws, where necessary, to make the knowing possession of child pornography, a felony.

The United States Supreme Court has called child pornography "a serious national problem."[524] In New York v.Ferber, the Court said that child pornography constitutes a permanent record of the children's participation in sexual activity, and the circulation of the pornography exacerbates the harm to the children. If the sexual abuse of children in pornography is to be curtailed the production and distribution network must be eliminated.[525]

Investigators have identified several uses of child pornography. The first use by pedophiles is for sexual arousal and gratification.[526] While some pedophiles only collect child pornography and fantasize through it, many have used it as a device to aid in the production of their own child pornography.

Child pornography is often used as part of a method of seducing child victims.[527] A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.[528] From a very early age children are taught to respect and believe material contained in books and will thus have the same beliefs about child pornography.[529]

A pedophile offender will use child pornography in which the children appear to be having a good time.[530] The offender uses this material to lower the inhibitions of the child and entice him or her into a desired activity. Children who view this material are also subject to a certain amount of peer pressure as they see other children engaged in the activity.

Child pornography is also used to illustrate the activities in which the pedophile wishes a child to engage.[531] In such instances a pedophile offender shows the child the pornography and asks the child to imitate the pictures.

Pornographic depictions of a child may be used to blackmail the child.[532] The pedophile offender will use the pictures to intimidate the child. The pedophile offender will threaten the child with showing the pictures to others if the child does not cooperate.

Child pornography is also seen as a valuable commodity among pedophiles. Visual depictions may be traded or sold between collectors.[533] This subjects a child to repeated victimization by countless numbers of pedophiles and makes the child the object of the pedophile's sexual fantasies.[534] Child pornography which may have originated as a homemade item may eventually by sold to a commercial child pornography publication.[535]

Child pornography has a life of its own. It is a permanent record of the victimization and sexual abuse of the child.[536] The depictions are timeless and may be distributed and circulated throughout the world for years after they are initially created. Each time the pornography is exchanged the children involved are victimized again.[537]

The harms to children from child pornography which the Supreme Court outlined in New York v. Ferber occur as a result of the existence of the material itself.[538] The enactment of criminal penalties for the possession of child pornography is essential if these harms are to be effectively curtailed.

Several states have recently recognized the inherent harm in child pornography and have enacted legislation prohibiting the possession of such material.[539] Only recently has this type of legislation met any constitutional challenge.[540] This challenge has been premised on the Supreme Court's ruling in Stanley v. Georgia.[541]

In Stanley, police executed a search warrant on the defendant's residence seeking evidence of a suspected bookmaking operation.[542] They located three reels of eight millimeter film in a desk drawer and upon viewing the films, they charged the defendant with possession of obscene matter.[543] He was convicted before a jury.[544] The Supreme Court reversed the conviction and held that "the mere private possession of obscene matter cannot constitutionally be made a crime."[545]

The first constitutional challenge to a state statute prohibiting the possession of child pornography came on December 1, 1985. The first appellate district in Ohio found the state law prohibiting possession of child pornography[546] to be unconstitutional.[547] The analysis used in invalidating the statute was based upon the rationale of Stanley v. Georgia.[548] The Ohio statute was declared unconstitutional because the state could not punish the mere private possession of magazines "which depicted minors...engaging in sexual activity."[549] New York v. Ferber[550] was distinguished on the grounds that it dealt with distribution and not mere possession of child pornography.[551] In finding the statute unconstitutional the Ohio court placed great significance on the language in Stanley where the Supreme Court rejected the contention by the state of Georgia that to eliminate the traffic in obscenity, it is necessary to bar mere private possession by an individual.[552]

In United States v. Miller[553] the United States Court of Appeals for the Eleventh Circuit recently upheld the conviction of a defendant who received child pornography from Europe through the mail.[554] The defendant contended that 18 U.S.C. S2252 (a)(a) violated[555] his right to privacy and relied on Stanley for his claim that the statute was unconstitutional.[556] The court rejected the defendant's argument that the statute only applies to individuals who intend to distribute child pornography.[557] However, in considering the privacy issue, the court said "prior decisions on the issue of the right to possess obscene materials are controlling in our analysis of this case.[556]

The court relied on several obscenity decisions in which the Supreme Court rejected the argument that Stanley created a right to import or receive obscene materials for private use.[559] The court concluded that Stanley cannot be expanded to create a right to receive child pornography through the mail.[560]

Any reliance on the rationale of Stanley or other obscenity cases with respect to a prohibition against the possession of child pornography is misplaced. Stanley upheld an individual's right to privately possess obscene material.[561] The prevailing obscenity standard at the time of the Stanley decision was contained in Roth v. United States.[562] Roth has since been modified in most jurisdictions by Miller v. California.[593]

In New York v. Ferber,[564] the Supreme Court upheld a New York law prohibiting the promotion of sexually explicit depictions of children that were not obscene under Miller.[565] In Ferber, the Court reasoned that the Miller standard, like all general definitions of what may be banned as obscene, does not reflect the state's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. The question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have sexually exploited a child through its production. In addition, a work which, taken as a whole, contains serious literary, artistic, political or scientific value may nevertheless embody the most grievous form of child pornography. The Supreme Court reasoned in Ferber, "It is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political or social value. Memorandum of Assemblyman Lasher in Support of S263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem."[566]

Any analysis concerning the constitutionality of laws prohibiting the possession of child pornography should not be made as a parallel to obscenity statutes. The Supreme Court has clearly distinguished the standards to be applied to child pornography laws and adult obscenity statutes.[567]

The Supreme Court stated in Ferber that "the nature of the harm to be combatted requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age."[568] The Court went on to clarify its statement by noting that "the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.[569]

The obscenity precedent is clearly inapplicable to a challenge against a statute in which the offense described clearly involved visual depictions of children engaged in sexual activities.[570]

The rationale underlying the Supreme Court's ruling in Stanley is vastly different from that in Ferber. In Stanley, the Court upheld the defendant's right to "read or observe what he pleases-the right to satisfy his intellectual and emotional needs in the privacy of his own home ... free from state inquiry into the contents of his library."[571] The Court also found, at that time, "little empirical basis" for the assertion made by the state of Georgia that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence."[572] However, the Court added in a footnote:

 

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.

 

Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e.g., 18 U.S.C. S793 (d), which makes criminal the otherwise lawful possession of materials which "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . ." In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.[573]

While Ferber admittedly dealt with a statute prohibiting the distribution of child pornography, the decision recognized compelling reasons for overriding the right of an individual to possess child pornography.[574] The Court found that "it is evidence beyond the need for elaboration that a state's interest in safeguarding the physical and psychological well-being of a minor is 'compelling.[575] While the Court in Stanley found little evidence then existing that exposure to obscene materials may lead to deviant sexual behavior or crimes of violence,[576] the Court clearly states in Ferber that "the legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[577] Child pornography constitutes a permanent record of the sexual abuse of the child and the harm to the child is exacerbated by the circulation of the material.[578] The very existence of child pornography harms the children who are depicted. According to one child psychiatrist quoted in Ferber, "the victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child."[579] With respect to obscene materials in Stanley, the Court found the privacy rights of the individual to be the overriding concern. In Ferber, however, the Court clearly found the harm suffered by minors to be of paramount importance. The focus of the protection constitutes a major distinction between these two landmark decisions. The Ferber Court's concern for minors included the consideration that when child pornography is produced and distributed, the child's privacy interests are violated.[580]

The Court in Stanley rejected the argument that prohibition of the possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution.[581] In Ferber, the Court recognized that it may be difficult, if not impossible, to stop the sexual exploitation of children by pursuing only those who produce child pornography.[582] Citing the clandestine nature of the child pornography trade, the Court noted that "the only practical method of law enforcement may be to dry up the market for this material . . ."[583] The prohibition of the mere possession of child pornography is a necessary incident to "drying up the market" for a product the Supreme Court has found to be extremely harmful to the youth of the nation. Such laws are also entirely consistent with the objectives sought to be attained by the Court in Ferber and should not be confused with other considerations relevant in the obscenity law context.

Notes

  1. New York v. Ferber, 458. U.S., (1982), pp. 747, 749.
  2. Id., pp. 759-60.
  3. K. Lanning, Collectors, in Child Pornography and Sex Rings, (A. Wolbert Burgess ed. 1984), p. 86.
  4. Id.
  5. U.S. Department of Justice, Federal Bureau of Investigation, Child Molesting: A Behavioral Analysis for Law Enforcement, (1986), p. 61.
  6. Id.
  7. Id.
  8. Child pornography magazines frequently include pictures of children viewing child pornography and replicating the poses or scenes depicted therein. Miami Hearing, Vol. I, R.P. "Toby" Tyler, p. 176A4.
  9. Miami Hearing, Vol. II, Paul Der Ohannesian II, p. 51; See also. K. Lanning, Collectors, in Child Pornography and Sex Rings, (A. Wolbert Burgess ed. 1984), p. 86.
  10. K. Lanning, Collectors, in Child Pornography and Sex Rings, A. Wolbert Burgess ed. 1984), p. 86.
  11. Id.
  12. Id.
  13. Miami Hearing, Vol. I, William Dworin, p. 30.
  14. Washington, D.C., Vol. II, John, pp. 47-48.
  15. 458 U.S., (1982), p. 747.
  16. See, e.g., "Sexual exploitation of a minor; classification A. A person commits sexual exploitation of a minor by knowingly:
    1. Recording, filming, photographing, developing or duplicating any visual or print medium in which minors are engaged in sexual conduct.
    2. Distributing, transporting, exhibiting, receiving, selling, purchasing, possessing or exchanging any visual or print medium in which minors are engaged in sexual conduct.

        B. Sexual exploitation of a minor is a class 2 felony." Ariz. Rev. Stat. Ann. S13-3553(1984);

        "A person who has in possession a photographic representation of sexual conduct which involves a minor, knowing or with reasons to know its content and character and that an actor or photographic subject in it, is guilty of a gross misdemeanor." Minn. Stat. S617.247(1984);

        "A person who knowingly and willfully has in his possession any film, photograph or other visual presentation depicting minors engaging in or simulating, or assisting others to engage in or simulate sexual conduct is guilty of a misdemeanor." Nev. Rev. Stat. S200.730(1984);

        "A. No person, with knowledge of the character of the material or performance involved, shall do any of the following:

    3. Possess or control any obscene material, that has a minor as one of its participants. With purpose to violate division (A)(2) or (4) of this section." Ohio Rev. Code Ann. 52907.321(1984).

  17. Ohio v. Meadows, No. 84 CRB 25585, Slip op. (1st Dist. Dec. 18, 1985) cert. granted (Ohio Apr. 9, 1986) (No. 86-233).
  18. 394 U.S., (1969), p. 557.
  19. Id. p. 558.
  20. Id.
  21. Id. pp. 558-59.
  22. Id. p. 559.
  23. R.C. 2907.321(a)(5) (1985).
  24. Ohio v. Meadows, No. 84 CRB 25585, Slip op. (1st Dist. Dec. 18, 1985), cert. granted, (Ohio Apr. 9, 1986) (No. 86-233).
  25. 395 U.S., (1969), p. 557.
  26. Ohio v. Meadows, No. 84 CRB 25585, Slip. op. (1st Dist. Dec. 18, 1985); cert. granted, (Ohio Apr. 9, 1986) No. 86-233).
  27. 458 U.S. 747(1982).
  28. Ohio v. Meadows, No. 84 CRB 25585, Slip. op. at 9 (1st Dist., Dec. 18, 1985); cert. granted (Ohio Apr. 9, 1986) (No. 86-233).
  29. Id. at 7.
  30. 776 F.2d 978 (11th Cir 1985), cert. denied. 54 U.S. L.W. 3698 (U.S. Apr. 22, 1986) (No. 85-1177).
  31. Id.
  32. This provision of the Child Protection Act provides penalties for any person who "knowingly receives or distributes any visual depiction . . ."
  33. 776 F.2d, p. 980.
  34. Id., p. 979.
  35. Id., p. 980 n. 4.
  36. Id. The court of appeals relied on United States v. Reidel, 402 U.S. 35191971); United v. 12 200 Ft. Reels, 413 U.S. 123(1973); United States v. 37 Photographs, 402 U.S. 363(1971); United States v. Orito, 413 U.S. 139(1973).
  37. 560. Id., p. 981.
  38. 394 U.S. p. 559.
  39. 354 U.S., (1957), p. 476.
  40. 413 U.S., (1973), p. 15.
  41. 458 U.S., (1982), p. 747.
  42. Id., pp. 760-61.
  43. Id., p. 761.
  44. 458 U.S., (1982), p. 747.
  45. Id., p. 764.
  46. Id., pp. 764-65.
  47. Ohio v. Meadows, supra note 540, p. 24; 18 U.S.C. S2252(a)(2).
  48. 394 U.S., p. 565.
  49. Id., p. 566. This Commission has found evidence of harm from exposure to pornography based upon evidence produced since the Stanley decision, See, Textual discussion of harms in Chapter 5.
  50. Id., p. 568, n. 11.
  51. Id., p. 568.
  52. Id., p. 756-57.
  53. 394 U.S., p. 566.
  54. 458 U.S., p. 758.
  55. Id., p. 759.
  56. Id., p. 759, n. 10.
  57. Id., p. 758, n. 9.
  58. 394 U.S., p. 567.
  59. 458 U.S., p. 760.
  60. Id.