RECOMMENDATION 73

Part: 
Three
Chapter: 
3

Judges and probation officers should receive specific education so they may investigate, evaluate, sentence and supervise persons convicted in child pornography and related child sexual abuse cases appropriately

Recognizing the pedophile offenders and child pornographers pose unique problems in the judicial and penal systems judges and probation officers must be adequately educated. A judge or probation officer can have a significant and positive impact on the offender only if he or she is fully knowledgeable about the situation.

Offenders in child pornography cases rarely go to trial.[659] He or she generally enters a plea and proceeds to sentencing.[660] The judge does not have the benefit of the evidence obtained through trial before considering an appropriate sentence.

The judge must bear the burden of thoroughly assessing the defendant and the offense. The judge must actually view the child pornography to make this evaluation. The judge should not only be made aware of the nature of the pornography and related sexual abuse, but he or she must be fully aware of the quantity and type of material a defendant may possess. Many judges hold the mistaken belief the child pornography offenders are less insidious because they are professional people within the community.[661] A judge should examine the child pornography and be aware of the abuses attributable to its production in order to fully evaluate the offender before sentencing.

The judges and probation officers should be fully informed about the latest social science and medical information regarding pedophile offenders and child sexual abusers and their susceptibility to treatment or behavior modification. Therapists and other professionals who have studied pedophile offenders currently express a great deal of doubt as to the viability of rehabilitation of pedophiles.[662] Judges and probation officers should focus their attention toward the need to protect society and potential victims in addition to therapeutic efforts for pedophile offenders.[663]

Until an effective treatment method is

widely accepted and implemented judges and probation officers must evaluate and supervise pedophile offenders carefully. Pedophile offenders who are incarcerated after an offense simply may use their time of confinement to plan their life and future offenses upon release. One pedophile offender wrote from his prison cell,

I plan to get into photography in a bigger way when I get out. While I am in here I am studying photography and plan to set up a part-time business. I plan to be very discreet too. I was getting a little careless and look what it got me. This is one area where discretion and caution are absolutely essential.[664]

There are several problems which have prevented this program from being implemented. First, there is a lack of effective treatment plans. An effective treatment plan should be developed which results in a long term behavior modification with a significant reduction in recidivism rates.

A second problem associated with an incarceration and treatment program is a concern of its coercive nature. If a program is structured to make early release contingent upon cooperative participation in a treatment program, a correctional facility may be subject to allegations of coercion and violations of the offender's constitutional rights.

In the absence of an effective treatment program, a judge and a probation officer should be aware of the perpetual threat a pedophile offender poses to society. The only viable alternative in the absence of an effective treatment program is a substantial period of incarceration. The incarceration should effectively remove the offender from society and protect the community for a significant period of time.

Incarceration serves several different purposes. It may serve to deter potential offenders, to protect society from this individual and to provide retribution against the of fender. Each of these factors need not be the basis for sentencing in every case.

The judges must examine each of these goals and determine which is the appropriate basis for sentencing. As previously discussed there are very few medical facilities that attempt to treat pedophile offenders.[665] In addition, incarceration often does not serve as a deterrent either to the specific offender or to other potential offenders.

The remaining goals of incarceration are the protection of society and retribution against the offender. Child sexual abuse or child pornography is one of the most insidious offenses known and the goal of retribution generally serves to reassure society of its values. Punishment also serves as an emotional support for the victim. This is particularly important in child pornography cases where the victim is left to feel guilty and ashamed.

The primary goal in sentencing should be to remove the pedophile offender so he or she does not present a threat to society. He or she must be removed for a substantial period of time. The Commission fully acknowledges these needs and recommends that a mandatory minimum sentence of two years be imposed on first time offenders. The sentences for recidivists should be substantially increased.

The welfare of the victim should remain the primary focus of the judge during the sentencing process. The sentence must also be sufficient to protect potential victims. The pedophile offender may continue to communicate with other pedophile offenders. One such communication was sent to an undercover police officer.

 

"Now I was arrested and all my photographs, books, magazines, slides, films, were confiscated. Since July 19, 1 have been here in a state hospital that treats men with sex offenses. I was first sent here for observation and committed here on November 3 for an indefinite period. That is why I was so happy to hear from you, as I no longer have the contacts with young girls I used to. I still have the same interests, but I am temporarily at a standstill. I was into photography quite a bit and managed to take some shots of Lisa and several of my students.[666]

 

The correction facility must be kept apprised of these types of communiques and they should be considered during parole hearings or evaluations for release.

Notes

  1. Miami Hearing, Vol. II, Joyce Karlin, p. 153.
  2. Id.
  3. Miami Hearing, Vol. I, Kenneth Lanning, p. 251.
  4. The Commission has heard testimony from several law enforcement officers, prosecutors and therapist discussing the recidivist pattern of pedophile offenders. See, e.g., Miami Hearing, Vol. I, William Dworin, p. 22.
  5. The following is excerpts from a telephone conversation between a pedophile offender and a child victim. Law enforcement agents have stated that discovering and recording an actual conversation between an alleged pedophile and a victim is rarely discovered.
      Subject. Oh, okay. Tell us when you're going to be nine.
      Victim. May 12.
    • S. That's pretty soon Angel.

      * * *

    • S. It's remarkable and I'm wondering if she's in her blue jeans?
    • V. No.
    • S. You're not in your blue jeans?
    • V. No, I'm in something like blue jeans.
    • S. Oh, I see, okay (Pause) blue jeans are falling out of fashion aren't they baby?
    • V. Yes.
    • S. They don't wear them too much anymore.
    • V. Nope, I don't even have any that fit. All I have is pants.
    • S. In other words you're going out of your blue jeans baby?
    • V. Uh, hum, I only have two pairs that still fit me.
    • S. That's amazing she is getting to be so curvy that she doesn't fit her blue jeans anymore. (Pause) I can tell she's grinning.
    • V. Laughs.
    • S. You're so sweet. You're just a precious little Angel. Are you still standing on your head baby?
    • V. No.
    • S. You know what I'm interested in, right? I'm interested in playing, right?
    • V. Right.
    • S. Is it alright if we have all three?
    • V. Uh, hum.
    • S. Okay.
    • V. Uh, hum.
    • S. Honestly.
    • V. Yeah.
    • S. That's great we'll all three play then okay?
    • V. Okay.
    • S. In other words we'll tickle ours and you'll tickle yours, right"?
    • V. Right.
    • S. Okay, that's my girl.
    • V. You know what would be good?
    • S. What.
    • V. If you gave me your phone number because then sometimes I could call you if my Mom's not off on Tuesday or Thursday sometimes she's at work on Tuesday or Thursday.
    • S. Oh, I see, yes, I understand however sweetheart for a little while would you do me a favor and just bear with me, be patient with me, okay, for a little while?
    • V. Okay.
    • S. It'll be a good idea as a matter of fact sometimes if she's not off on Tuesday and Thursdays I could call and say let me to speak to Sam and all you have to do is say you have the wrong number, right?
    • V. Right.
    • S. And that would protect us. Can you take your panties off.
    • V. What?
    • S. Can you take your panties off while we're playing.
    • V. No.
    • S. Please, pretty please.
    • V. No.
    • S. She'll tell you it's alright.
    • V. Okay, I'm back.
    • S. Ask her if she thinks it's alright.
    • V. You ask her.
    • S. Oh, okay, alright ah, sweetheart we were discussing the possibility of playing while you were gone from the phone and I wanted you to know all three of us to tickle ourselves while we were talking okay, alright, do you understand?
    • V. Uh, huh.

      * * *

    • S. Let me put it this way, it would make me very happy if you took your panties off, okay"?
    • V. Well, guess what.
    • S. What.
    • V. I can't.
    • S. You're so sweet, thank you so much Angel. Why"?
    • V. Because.
    • S. Because of what.
    • V. Well, I'm downstairs and my brother and sister will be coming home. My sister always runs into my room.
    • S. Hold it now, you're downstairs.
    • V. Um, hmm.
    • S. And won't they see you when they first come in?
    • V. Yeah.
    • S. So what you need to do is hang up this phone and go upstairs.
    • V. Okay.
    • S. Okay, do me a favor go upstairs first and then come back down and hang this phone up.
    • V. Okay.
    • S. Or if you want me to hang this phone up and I'll call you back and you can answer upstairs.
    • V. Okay.
    • S. Alright, okay.
    • V. Okay.
    • S. Why don't we do that you hang up this phone up and I'll call you back and you can answer upstairs.
    • V. Okay.
    • S. Alright okay.
    • V. Okay.
    • S. Okay, you're going to hang up now ...
    • V. (Hangs up).

      * * *

    • (Phone rings)
    • V. Hello.
    • S. Now it's safe, isn't it?
    • V. Right, except for one thing.
    • S. Except for what.
    • V. My blinds are open.
    • S. Your what.
    • V. Blinds.
    • S. Oh, we'll hold on while you close them.
    • V. Okay.
    • S. Isn't she precious Angel.

      * * *

    • S. She is just adorable and think about how thoughtful she is, how intelligent she is. I mean didn't you think that was remarkable that she would say my blinds are open.

      * * *

    • S. You betcha she's a very intelligent young lady. It's just delights me I'm so proud of her.
    • V. I'm back.
    • S. And I'll betcha that you've taken your panties off now.
    • V. Hmm, okay.
    • S. Did she take them off.
    • V. Um, Humm.
    • S. You're completely unclothed from the waist down you still have your blouse on though.
    • V. Right.
    • S. Okay, so when you hear your brother and sister come home you can put your clothes back on real quick, right.
    • V. Right.
    • S. That's good, isn't fun to do something sweetheart and know that you can get away with it, that it's perfectly safe.
    • V. Yes.
    • S. It is fun isn't?
    • V. Um, hmm.
    • S. Have you ever, have you ever wanted to play with someone like this in person?
    • V. Um, hmm.
    • S. Tell us about it.
    • V. Well um you gave me the idea so I tried it.
    • S. With who?
    • V. I just called someone I don't know who they were.
    • S. Oh, you did?
    • V. But I looked it up in the phone book, I didn't look for any certain name. I just looked for the number.
    • S. Oh, I see in other words you got numbers out of the phone book.
    • V. Right.
    • S. Well, it's not I'll teach you how to make up numbers one of these days Sweetheart, it's really not necessary to go to the phone book. And, however, I want to find out you talked to someone?
    • V. Um, hmm.
    • S. And how old a person was it? Could you tell?
    • V. No.
    • S. Was it a man or a woman?
    • V. Man.
    • S. Did you tell him that you were tickling yours?
    • V. What?
    • S. Did you tell him that you were tickling yours?
    • V. No.
    • S. Did you get him to tickle his?
    • V. No.
    • S. Well, what did you all do Sweetheart?
    • V. Talked.
    • S. Talked about what?
    • V. Something.
    • S. Tell me about what, come on. About sex?
    • V. No.
    • S. What did you all talk about, tell me now.
    • V. Well, we just talked.
    • S. I see.

      * * *

    • S. I see, but ah, you didn't talk about sex.
    • V. No.
    • S. And he didn't talk about wanting to be with you or to see you or meet you or something.
    • V. Well, he would like to come over to our house.
    • S. He did, he said that.
    • V. Um, hmm.
    • S. He did.
    • V. But I said he couldn't.
    • S. . . . Angel, you didn't give him your address. I hope.
    • V. No.
    • S. Okay, golly that worried that kind of thing worries me.

      * * *

    • S. Well, sweetheart its alright for you talk to anyone on the phone anyone but don't give them your phone number and don't tell them your address. And certainly don't tell them you last name. Okay.
    • V. Okay.
    • S. Because that way you'll be perfectly safe as long as you don't give them your phone number as long as you don't give them your address and as long as you don't give them your last name. Okay?
    • V. Okay.
    • S. That way you'll be perfectly safe. That way you can talk to anyone on the phone you want to as long as you don't tell them your phone number, your name, your address, okay.
    • V. Okay.
    • S. Those things ah, are if you gave them anyone of those things it could be dangerous to you sweetheart. It could be I'm not saying it would be normally, it probably wouldn't be but it could be see.
    • V. Um, hmm.
    • S. I don't want to make you unnecessarily afraid, I want you to makeup numbers and talk to people that's fine but protect yourself in the process and as long as you don't give them your phone number your address or your name you're safe. You can tell them your first name that's alright. (Pause). Anyway, since you've talked to me, have you tickled yourself when you went to sleep?
    • V. Um, hmm, yeah.
    • S. Good. That's a lot of fun isn't it. Sweetheart?
    • V. Um, hmm.
    • S. It is. Has it gotten to where it feels real good yet.
    • V. No.
    • S. Well, it will you just keep tickling it and it will, and when you go to sleep sometimes when you're tickling it does it get real juicy?
    • V. Does it get what.
    • S. Does it get real wet, real juicy?
    • V. No.
    • S. Well, it will. And do you know what it means, when it gets real wet and real juicy.
    • V. No.
    • S. It means that you're learning how to do it better.
  6. Miami Hearing, Vol. I, William Dworin, p. 15.
  7. One such facility is the Massachusetts Treatment Center in Bridgewater, Mass.; See, Washington D.C., Hearing, Vol. II, Richard Prentke, p. 65.
  8. Miami Hearing, Vol. I, William Dworin, pp. 14-15.