State Laws

Part: 
Three
Chapter: 
3

The federal interest in protecting children, of course, is secondary to that of the states, which act as principal guardians against the abuse or neglect of the young. It was indeed a state law substantially broader than the 1977 Act which prompted the landmark decision in New York v. Ferber.[433] States are not limited, as is the federal government, to regulation of child pornography in or affecting interstate commerce; they have the power to prohibit all production and trafficking in such materials.

To a substantial extent the states have exercised that power. Nearly all ban the production of child pornography, and an overwhelming majority prohibit distribution as well.[434] Most prohibit as well parental conesent or accession to use of children in sexually explicit materials, and many outlaw facilitation of sexual exploitation through financing, developing, duplication, or promoting child pornography.[435] Some have prohibited as well the possession of child pornography, an extremely effective weapon against child molesters.[436]

Yet it is clear, too, that much remains to be accomplished on the state level. Not all states ban trafficking in child pornography, so that it remains possible in some parts of this country to distribute such materials intrastate without fear of criminal penalty. Further, only about half of the states protect children from use in pornography until their eighteenth birthday; in other states the age limit is set at sixteen or seventeen.[437] (This Commission has determined, indeed, that such protections should, on a somewhat more limited basis, be extended to age twenty-one.)[438] Finally, few states appear to have taken action to provide substantial assistance to victims of child pornography-either through direct aid or through encouraging private civil remedies.[439] The primary role of states in caring for children would seem to argue for their assumption of the principal share of the burden of providing such assistance.

The legislative assault on child pornography drastically curtailed its public presence; it has not, however, ended the problem. Sexual exploitation of children has retreated to the shadows, but no evidence before the Commission suggests that children are any less at risk than before. The characteristics of both perpetrators and victims, combined with the extremely limited state of professional understanding, make it unlikely that child pornography is a passing phenomenon.

Those who sexually exploit children do so for a wide range of reasons, and come from an extremely broad array of backgrounds, and occupations,[440] but it seems helpful to group them into two categories: "situational" and "preferential" molesters.[441] The former are people who act out of some serious sexual or psychological, need, but choose children as victims only when they are readily and safely accessible. "Preferential" molesters, on the other hand, are those with a clear sexual preference for children ("pedophiles" in common usage) who can only satisfy the demands of that preference through child victims. "Preferential" abusers collect child pornography and/or erotica almost as a matter of course. It is unclear how large each of these respective categories is, but it does seem apparent that "preferential" child molesters over the long term victimize far more children than do "situational" abusers.

The approaches adopted by various perpetrators also vary widely. The most recent research on "child sex rings" indicates that they range in structure from highly organized, "syndicated" operations involving several perpetrators and many children with production of child pornography for sale or barter, to "solo" operations in which children are abused and photographed by only one perpetrator for his pleasure.[442] Child pornography, while serving primarily the perpetrator's own needs, is also useful for lowering the inhibitions of other children being recruited by the perpetrator.[443] Wholly commercial operations appear to be extremely unusual, but are still not unknown.[444]

The normal absence of commercial motives, and the strong sexual and/or psychological needs which push both situational and preferential molesters toward sexual abuse of children in pornography, suggest that the demand for such material may be somewhat inflexible. While situational abusers may be steered away from children as victims, preferential abusers may not-and they are prone, moreover, to far more frequent abuse. However strong the criminal law, sexual exploitation of children seems likely to remain an irresistible temptation for some.

What is worse, the supply of potential victims seems inexhaustible as well. Children used in pornography seem to come from every class, religion, and family background; a majority are exploited by someone who knows them by virtue of his or her occupation,[445] or through a neighborhood, community or family relationship. Many are too young to know what has happened; others are powerless to refuse the demand of an authority figure; some seem to engage in the conduct "voluntarily," usually in order to obtain desperately needed adult affection.[446] Adolescents used in pornography are often runaways, homeless youth or juvenile prostitutes who may feel with some justice that they have little choice but to participate.[447] Thus it seems clear that a large class of children and teenagers vulnerable to use in pornography will continue to exist. Even redoubled efforts to teach children to protect themselves from such involvement will not wholly blunt the strong social, family, and economic forces creating that vulnerability.

The rise of the child pornography "problem" took medical, social services and legal communities as much by surprise as it did Congress and the general public. It is only fair to note, therefore, that what one witness dubbed "conceptual chaos" is a serious obstacle to progress against sexual exploitation of children in pornography;[484] at present only a tiny quantity of serious scholarship on the subject has found its way into print.[449] There are indications, moreover, that researchers and clinicians attempting to specialize in the field have faced serious resistance from their peers.[450]

No profession is more open to the charge of ignorance in this area than the law itself.[451] Court procedures are particularly intimidating for children asked to relate extremely intimate sexual details that they know will be reacted to with horror by family and friends.[452] A criminal proceeding, moreover, creates a double bind for the child: if he is believed, a former "friend" will go to jail; if he is not, he must endure additional guilt from thoughts that perhaps he did not tell enough.[453] The study of novel investigative and courtroom procedures to address these problems is only in its infancy: where the child pornography itself is not sufficient, without use of the victim as a witness, to establish the prosecutor's case, parents are likely to face an excruciating dilemma. Lawyers and judges, like doctors and mental health professionals, remain largely ignorant of how to respond to child pornography victims.

That ignorance is deeply unfortunate because the pain suffered by children used in pornography is often devastating, and always significant. In the short term the effects of such involvement include depression, suicidal thoughts, feelings of shame, guilt, alienation from family and peers, and massive acute anxiety.[454] Victims in the longer term may successfully "integrate" the event, particularly with psychiatric help,[455] but many will likely suffer a repetition of the abuse cycle (this time as the abuser), chronic low self esteem, depression, anxiety regarding sexuality, role confusion, a fragmented sense of the self, and possible entry into delinquency or prostitution.[456] All, of course, will suffer the agony of knowing the record of their sexual abuse is in circulation, its effects on their future lives unknowable and beyond their control.[457] That may well be their most un-healable wound.

Because the trauma inflicted on children by sexual exploitation is so great, it has seemed to the Commission particularly important to examine every possible approach to improving the state of the law and services to victims. While limitations of time and resources placed significant constraints on that effort, it was nonetheless possible to discuss the problem of child pornography from a number of different perspectives, and to develop recommendations where the evidence called for them. The recommendations so conceived follow, along with explanations of the reasons for each.

TABLE 1

Situational Child Molester

 

REGRESSED

MORALLY INDISCRIMINATE

SEXUALLY INDISCRIMINATE

INADEQUATE

BASIC CHARACTERISTIC

Poor Coping Skills

User of People

Sexual Experimentation

Social Misfit

MOTIVATION

Substitution

Why Not?

Boredom

Insecurity and Curiosity

VICTIM CRITERIA

Availability

Vulnerability and Opportunity

New and Different

Non-Threatening

METHOD OF OPERATION

Coercion

Lure, Force, or Manipulation

Evolve in Existing Activity

Exploits Size Advantage

PONOGRAPHY COLLECTION

Possible

Sadomasochistic; Detective Magazines

Highly Likely; Varied Nature

Likely

Source: U.S. Department of Justice, Federal Bureau of Investigation, CHILD MOLESTERS: A Behavioral Analysis for Law Enforcement, 19, (1986).


TABLE 2

Preferential Child Molester

 

SEDUCTION

INTROVERTED

SADISTIC

COMMON CHARACTERISTICS

  1. Sexual Preference for Children
  2. Collect Child Pornography and/or Erotica

MOTIVATION

Identification

Fear of Communication

Need to Inflict Pain

VICTIM CRITERIA

Age and Gender Preferences

Strangers or Very Young

Age and Gender Preferences

METHOD OF OPERATION

Seduction Process

Non-Verbal Sexual Contact

Lure or Force

Source: U.S. Department of Justice, Federal Bureau of Investigation, CHILD MOLESTERS: A Behavioral Analysis for Law Enforcement, 25, (1986).


TABLE 3

Cycle

One of the most common questions asked from a public that knows very little about child pornography is: "How does child pornography begin?" This diagram explains one of the most common ways a child is introduced to pornographic activity:

Cycle of Pornography

  1. Pornography is shown to the child for "sex education."
  2. Attempt to convince child explicit sex is acceptable, even desirable.
  3. Child porn used to convince child that other children are sexually active - it's ok.
  4. Child pornography desensitizes lowers child's inhibitions.
  5. Some of these sessions progress to sexual activity.
  6. Photographs or movies are taken of the sexual activity.
  7. [Back to (1) above]

Source: S. O'Brien, Child Pornography, 89, (1983).

Notes

  1. The law in question was N.Y. Penal Law 5263.15.
  2. National Legal Resources Center for Child Advocacy and Protection, A.B.A., Child Sexual Exploitation: Background and Legal Analysis 35 (1984) (49 states as of November 1984) (hereinafter "A.B.A. Analysis").
  3. Id., p. 36.
  4. Thus Special Agent Kenneth Lanning of the F.B.I. noted in his testimony before the Commission that "pedophiliacs" almost always collect child pornography and/or child erotica:" Miami Hearing, Vol. I., Kenneth Lanning, p. 232.
  5. A.B.A. Anaylsis, supra note 434, p. 37.
  6. See, The discussion in this Chapter for Recommendations for Federal Legislation, infra.
  7. As an example of the difficulty of obtaining for children victimized in sexually explicit material see, Faloona v. Hustler Magazine, 607 R. Supp. 1341 (D.C. Tex, 1985), appeal docketed, No. 85-1359 (5th Cir. 1985).
  8. Washington Hearing, Vol. 1, Daniel Mihalko, p. 149; Belanger, et. al., Typology of Sex Rings Exploiting Children, in Child Pornography and Sex Rings 74 (A. Burgess ed. 1984) (hereinafter "Sex Rings").
  9. For these categories and the analysis that tollow from them the Commission is gratetul to Special Agent, Kenneth Lanning, F.B.I.
  10. Belanger, supra note 441, p. 51.
  11. Lanning, Collectors, in Sex Rings, supra note 440, p. 86.
  12. See, Sex Rings, supra note 440, pp. 67-73, 78 (seventeen of fifty-four child sex rings studies were "syndicated", most of which sold child pornography and used children in prostitution).
  13. Id., pp. 74-75 (38.2 percent of offenders studied had access to children through occupation; 27.3 percent through their "living situation").
  14. U. Schoettle, Report to the United States' Attorney General's Comm'n on Pornography 11 (Miami Hearing).
  15. See, Rabun, Combatting Child Pornography and Prostitution: One County's Approach, in Child Sex Rings, supra note 441, pp. 187-200 (fifteen percent of runaways acknowledged involvement in pornography. James Scanlon & Price Youth Prostitution, in Child Sex Rings, p. 139 (seventy-five percent of male hustlers aged fourteen to twenty-five had participated in pornography).
  16. Miami Hearing, Vol. 1, Roland Summit, p. 210A19.
  17. The leading studies seem to be those contained in Child Sex Rings, supra note 440, and U. Schoettle, Child Exploitation: A Study of Child Pornography, 19 J. Am. Acad. Child Psych. 289 (1980) (cited by the Court in New York v. Ferber, 458 U.S. at 758 n. 9) (hereinafter "Child Exploitation").
  18. Statement of Roland Summit, supra note 448, pp. 8-15.
  19. The most scathing indictment of the legal system's capacity to bring child pornography cases to justice was supplied to the Commission by Dr. Roland Summit, who said, in part: "Sex crimes, more than 'legitimate' crimes, seem to require criminal conviction to justify public validation. That standard in itself represents another Catch 22 in favor of traditional denial. The insistence of proof beyond reasonable doubt for an invisible and illogical crime almost guarantees suppression and repudiation." Id. pp. 5-6.
  20. See generally, Summit & Kryso, Sexual Abuse of Children: A Clinical Perspective, in Children and Sex, pp. 111, 123-124 (L. Constantine & F. Martinson eds. 1981).
  21. Child Exploitation, supra note 449, p. 297. 454. Schoettle Statement, supra note 446, p. 10.
  22. Burgess, et al., Impact of Child Pornography and Sex Rings on Child Victims and Their Families in Child Sex Rings, supra note 440, pp. 115-117.
  23. Schoettle Statement, supra note 446, p. 10.
  24. See New York v. Ferber, supra note 392, 458 U.S., p. 759, and studies cited therein.
  25. See, The discussion of performers in Part Three.