Grisham and the law

Originally posted on October 17, 2014

John Grisham waded into a political war-zone when he commented on the conviction of people who possess child pornography. Grisham stated in an interview with the Telegraph:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.

“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

His comments sparked criticism from child advocacy groups. However, Grisham went on to state:

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.

“I have no sympathy for real paedophiles,” he said, “God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that’s what they’re getting,” adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

No one paid attention to that part, or this part of the Telegraph article:

Since 2004 average sentences for those who possess – but do not produce – child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission.

However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.

A provocative article in the libertarian magazine Reason headlined “Looking v Touching” argued last February that something was “seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children”.

Grisham later issued an apology for his comments.

I  talked about this topic before. There are many cases in which people face harsher sentences for possessing child porn than than people who created the images and abuse children. That is absurd.

I know there are images of me on the internet. I know some people have looked at them. I think that is horrible. I do not want people gratifying themselves at my expense. Yet, the harm from that is incomparable to what I experienced making them. There is no reason to punish someone caught with those images more harshly than those who made them.

I understand the counter argument about the continued abuse experience. As Suzanne Ost explains:

Second, it is far too simplistic a claim that those who view images of child abuse online have never harmed anybody. While they themselves may never have touched a child, they contribute to the harm caused to children involved in the creation of such images in numerous ways. For instance, seeking out these images can encourage the market and thus the abuse of more children to fulfil demand. Viewers also underwrite and take advantage of the sexual abuse of the children who feature in the images. Studies involving counsellors and trauma therapists who have treated victims have shown that awareness that their images have been made available for others to view causes the child further mental suffering: their abusive experience has no end because at any time someone could be receiving sexual gratification from viewing their abuse. Other studies have identified a tendency for viewers to downplay their role in causing children harm. Such a perception, which mirrors that expressed by Grisham, could lead to an individual continuing to view these kinds of images. Thus, one particular message that must be conveyed is that this behaviour contributes to victims’ ongoing abusive experiences.

Yes, it is possible that seeking out such images could cause people to make more of them. That certainly does occur (although it is my understanding that most images are from people’s personal collections that they share online rather than being created specifically to be shared). It is also true that many survivors do continue to feel abused because those images are still out there.

Nevertheless, the majority of people viewing these images are not touching any children. The images were already created and most of those people had nothing to do with that. So what is the sex offense? That is Grisham’s point, and I agree with him.

There is no sex offense. There is simply the thought of the offense. These people look at the images and think about either watching it happen or doing it themselves. In other words, we are punishing people for thought crimes. I think that is why, as noted above, the sentences for possession of child porn doubled in six years.

We are repulsed by the notion that people fantasize about having sex with children. That people write stories and draw artwork depicting such acts sickens us. That people would seek out images of real children is worse.

Yet what makes that so bizarre is that people who actually rape children rarely receive the four and a half to eight-year sentences mentioned in the article, particularly if they are female.

We have gotten to the point where we appear to think it is worse to think about hurting a child than actually hurting the child. That is completely backwards.

Granted, there is a potential legal reason for the sentencing disparity. Most sex offense cases rely solely on the testimony of the victim. There is typically no other evidence. That makes the cases harder to prove beyond a reasonable doubt. Prosecutors are more likely to offer plea deals in those cases.

In contrast, child porn cases have evidence: the child porn itself. There is no question the offense occurred (unless one contested that one did not download the images). This makes them much easier to win, and gives the prosecutors more room to offer harsher plea deals. They can use a handful of images to charge a person with a multitude of offenses that will ensure a long prison term.

That said, I agree with Grisham that we should rethink how we treat people caught with child porn. They should be punished, yet not more harshly than those who actually created the images. There is no reason a person who has not touched a child should spend nearly decade in prison while those who repeatedly abuse children can count the years they served in prison on one hand.

3 thoughts on “Grisham and the law

  1. Reminds me of the Supreme Court of Canada ruling R. v. Sharpe.

    The issue was whether or not possession of child pornography causes “harm”, the idea being that if it doesn’t, it could be inconstitutional to treat it as a crime. In its usual disregard for empirical studies, the Supreme Court stated that it would be “hard” to prove such a harm, going so far as saying that it’s pretty much impossible to prove. That it was the government’s burden to prove the harm didn’t seem to matter. Possession remained a crime because the “reasoned risk” of “cognitive distortions” and “attitudinal harm” was deemed sufficient. This bit of gobbledygook led some authors to comment that the Court was going very close to “thoughtcrime” territory.

    I have no love at all for child pornographers, but it just seemed to me that such weak reasoning would not fly if the subject matter was different.

  2. It’s weird that you just reposted this because I recieved a petition today for a teenager facing five felony counts for a cell phone picture of himself and his girlfriend. Four of the counts are because he had a nude picture of himself.

    I can’t help but wonder if this is just laws not keeping up with technology.

    A generation ago, possession meant physical possession of polaroids or something along those lines- most of the time, a person having that would have almost certainly either been the abuser or been in direct communication with the abuser. That’s not exactly trivial to create and noone could claim accidental possesion- if nothing else they would have been guilty of not immediately ripping the photo up. So I could see that being more serious than an offense involve no pictures.

    Digital possession is an entirely different situation, now it’s likely the offender played no active role, and accidental download actually seems plausible. Law enforcement officers aren’t going to go easy on this- if anything they’re happy that they can more easily investigate and prosecute. So I guess we need to reexamine the law.

  3. Peter, it is not just a matter of the laws not keeping up with the technology; it is a matter of how the laws are applied. The teen boy you mentioned is charged with possessing pictures of himself. Nothing in the law says that it applies in those instances. Prosecutors choose to charge teens in an effort to curb sexting and make examples out of them. That it would brand these children sex offenders, often times for life, does not seem to bother the states.

    This is the same problem we have with statutory rape prosecutions. If my godson and his boyfriend have sex, because his boyfriend is a year older, he can be charged with statutory rape. The laws were not created to imprison teens for having sex with other teens. Yet do to this bizarre desire to control teen sex, prosecutors go after these cases, even in instances in which the victims do not the person charged.

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