One issue that has come up in the confirmation hearings of Supreme Court nominee Ketanji Brown Jackson is her apparently light treatment of Wesley Hawkins, a 19-year-old who, at age 18, had uploaded to YouTube “five videos of prepubescent boys engaged in sex acts.” The record showed that Hawkins had not produced any of the videos. Instead, he himself had found them online. Even though federal guidelines suggested a sentence of 8 to 10 years, the prosecutors themselves asked for only 2 years in light of Hawkins’ age and lack of a previous criminal record.
Judge Brown took into account both Hawkins’ age and the fact that he had not produced any of the videos. She sentenced Hawkins to 3 months in prison, followed by 3 months in home detention and 6 years of supervision.
Some of the Republican Senators objected that Judge Brown was too lenient. I think she was too tough because what Hawkins did shouldn’t even be a crime.
Here’s my reasoning. I think that it’s worse to murder prepubescent boys than to take videos of them having sex. It’s also worse to murder adults than to take videos of prepubescent boys having sex. But as far as I know, there are no laws saying that news channels can’t show people, whether boys or adults, being murdered.
Think back to that horrible day, September 11, 2001. How often did news stations show the sickening collision of the second major airplane crashing into one of the World Trade Center buildings? I probably saw that crash more than 20 times. I found it horrible, but it was hard to turn away. I watched multiple murders. Also, on that day, a friend and I saw a picture in a newspaper of a man upside down falling from one of the World Trade Center buildings. Yes, it was technically suicide, but really it was murder. So I viewed that murder. What if I had shared the video of the plane crash (multiple murders) or the picture of the man who had jumped out the window to his certain death (a single murder)? Should I have been charged with a crime for sharing a video or a picture?
And if I shouldn’t, then why should what Hawkins did be a crime?
You might argue that it has to do with incentives. If people aren’t penalized for watching child pornography, there will be more demand for child porn. And if there’s more demand, it’s likely that more will be supplied. That’s a good argument.
But let’s apply it to the murder case. We have reason to think that some murderers who do very visible murders do it for the publicity, even if they won’t be around. I remember reading after the fact that a man in Sacramento murdered 5 people on September 10, 2001 and left a videotape in which he stated that he would go out in a bigger way than Timothy McVeigh, the OKC bomber. Of course, it was forgotten, except by the families of the victims, for obvious reasons. But the point is that he did it in part for the publicity. So when news stations broadcast murder scenes they are adding to the incentive for potential murderers to become actual murderers. Yet the news stations do so completely legally and many of us watch completely legally.
So the incentive argument isn’t enough of an argument.
What is? So far I can’t find a good argument that says that there should be no law against watching and sharing videos and pictures of murder but there should be a law against watching and sharing videos and pictures of child pornography.
But I’m open to being persuaded.
READER COMMENTS
Peter
Mar 28 2022 at 9:48pm
There are no good arguments against it, it simply comes down to we like murderers because they could be anyone including ourselves whereas we don’t like other people having sex we don’t enjoy ourselves. It’s the icky factor made law, nothing more nothing less.
That said it’s harder than you think to find videos of real graphic uncensored murder even if legal, it’s actually easier to find child snuff pornography believe it or not. Back in the day when “information wanted to be free” Web 1.5 you had places like the stile, ogrish, etc “shock” sites but with CDN and the world really moving to social media and US norms as the Internet standard*, those all went away and the content became basically forbidden by TOS’s plus they get filtered out of search engines. It’s harder and harder to find ISIS uncensored beheading videos in full, suicide videos, adult snuff films, animal “rape and torture” videos, etc.
Blanket illegal products have a high premium market hence why child porn sellers exist and content is readily available whereas just no incentive to host distasteful stuff. It’s the same reason why it’s easier for a teenager to buy cocaine than cigarettes or alcohol. The downside risk from the supplier point just isn’t worth it.
* People actual miss this point often. Much content, fully legal in most of the world including child pornography, is simply unavailable worldwide because US companies run all the major Internet outlets. Same reason content illegal in many countries is easily available to their citizens simply because it’s legal in the US. The Internet content in practice is US morality and law.
Mark Brady
Mar 29 2022 at 5:22pm
Peter writes, “Much content, fully legal in most of the world including child pornography, is simply unavailable worldwide because US companies run all the major Internet outlets. Same reason content illegal in many countries is easily available to their citizens simply because it’s legal in the US. The Internet content in practice is US morality and law.”
Indeed. Specifically, the age of consent in most of the rest of the world, including Western Europe, is lower than that prescribed in a great many U.S. states (17 & 18) and by federal law governing pornography (18). This means that Internet porn on the WWW has a cut-off of eighteen years.
AMW
Mar 28 2022 at 10:46pm
Elasticity of supply?
Philo
Mar 29 2022 at 12:29am
The incentive argument applies to crimes that were staged in order to be photographed so that the photos could be sold for profit. Forcing or inducing children to engage in sex acts would be a common such crime, if producers were allowed to profit from the sale of child pornography. On the other hand, murdering people would not be a common such crime, for two reasons: (1) the number of people who would pay for scenes of murder is much, much smaller than the number who would pay for scenes of children engaging in sex acts; (2) murder is much more readily dealt with directly through ordinary police work than is forcing/inducing children to engage in sex acts. Regarding (2), the evidence for murder is usually clear-cut–a dead body with marks of violence upon it; the evidence for forcing/inducing child sex acts is usually weak (though it does help when there is a photographic record!). But the evidence that there has been a sale of child-pornographic images is more readily obtainable, and the evidence of possession of such images is easier yet.
(Mere photos of naked children not engaging in sex acts should not be considered “child pornography,” though they may raise issues of privacy. And “virtual child pornography”—images generated by computer or otherwise produced without the sexual exploitation of children—should not be illegal [unless they are “obscene”].)
Phil H
Mar 29 2022 at 9:10am
I think there are a couple of ways to think about the sharing of such images that would make it illegitimate, and maybe criminal.
First, you can argue that sharing (and consuming) images of kiddy porn is a form of participation in the act of child abuse. You can draw an analogy with consensual sharing of sexual images: if you send a dirty picture to someone, you are engaging in a form of long-distance sex with them; or if an exhibitionist shares images of themself online, they are engaging sexually with the people who view the images. It’s not the same thing as being in the room, but it is still sexual engagement with a person who does not consent.
Another line would be privacy: everyone has a right to some measure of control over their own image, and in particular to sexual images of themselves. The children in these pictures did not consent to their sexual images being shared. The relevant comparison here would be revenge porn.
Or you might think in terms of when it is alright to share images of criminal activity. When the news shows images of murder, they do it to inform, not to titillate, and we generally think that’s OK. Most people feel that it’s not OK to enjoy images of murder (snuff films), because that’s using crime images for a bad purpose. Similarly, when police officers view and share kiddy porn for the purposes of catching offenders, that’s OK. We know they’re doing it for a legitimate purpose. But online, the viewing of porn is almost exclusively for pleasure (not for “research” as some have been known to claim). That’s equivalent to Bin Laden cronies in their caves viewing for 911 footage for sadistic pleasure.
All of the ideas above are instinctive and moral reactions, not legal reflection. The difficulties around Son of Sam laws illustrate how hard it would be to translate any of these ideas into workable legislation compatible with general liberty. So I’m not trying to defend any legislation as it currently exists. But I think that there are some fairly solid ethical foundations on which you could base laws against viewers and sharers of sexual child images.
Andrew_FL
Mar 29 2022 at 9:57am
I don’t think snuff films are generally considered legal, I think the news media just has certain immunities due to freedom of the press.
Peter
Mar 29 2022 at 1:25pm
They are 100% legal to watch in the USA.
S. F. Griffin
Mar 29 2022 at 11:33am
Viewing is not doing, so acts of doing and viewing can form separate hierarchies, so even if murder is worse, it does not follow that viewing murder is worse.
To rank viewing harms, we have to look not at the gravity of injustice of the act depicted, but the harm caused by the viewing itself.
Sexual imagery has a rich history of being viewed as harmful, due to being degrading, violating, and humiliating, and so ranks high as a viewing harm. Hence, pictures of even legal sexual acts are often used against people as blackmail and revenge material. In liberal societies, consent can wash away harm, but children cannot legally consent, so the distribution and viewing of sexual images of children for entertainment is seen as an unjust harm, and so illegal.
Murder imagery has no such history and is not typically seen as degrading, violating, or humiliating in viewing. Watching a man fall from a burning building is haunting and informative, but not generally seen as harming the falling man or anyone else. If snuff films of real murders were more of a thing, then they would probably be outlawed.
S. F. Griffin
Mar 29 2022 at 12:55pm
Another way of looking at it, it is worse to murder someone than defame their reputation, but it is better to write about the facts of their murder than libel them.
John Alcorn
Mar 29 2022 at 4:58pm
I conjecture that empirical assumptions about mens rea help to explain the contrast.
There is a presumption that persons who watch and share child pornography are depraved and indifferent to the child’s victimhood, because they take perverse pleasure in watching and sharing a record of it. (“Depraved indifference” is a criterion in law.)
There is no such presumption about the mental state of persons who watch and share images of murder. For example, David Henderson reports that he found horrible the vivid footage of murder of innocents by terrorists on 9/11—but also found it hard to turn away. Surely, his perceptions and behavior towards those images was the norm—in both senses of the word—among Americans.
The psychological contrast is between gratification and ‘witness.’
The presumptive contrast in mens rea seems broadly valid. True, there might exist individuals who privately watch and share child pornography as ‘witness;’ or who seek perverse pleasure in images of murder.
PS: A video of Osama Bin-Laden and his fellow cell members erupting in joy at the footage of deaths on 9/11 is presumably evidence that they deemed those deaths not murders, but “just killings” of enemies.
Michael
Mar 30 2022 at 5:05pm
This is tangential to your main topic, but there is another economic issue underlying the dispute. There’s an intention behind criminal laws that the punishment should be proportionate to the severity of the offense along with other factors like whether the defendant is a reapeat offender, etc. Congress sets the minimum and maximum penalties by statute, and then sentencing guidelines – which are advisory rather than binding – are developed to help judges tend to sentence people the same way for the same offense.
The problem with the current system in the US (assuming here for arguments sake that you accept the way the system works in general) is that the measure used in the sentencing guidelines to assess the severity of a “non-production child pronography offense” (meaning just recepit or possession of images rather than creation of them) was the number of images. I don’t know the exact figures but 1 to 50 might be one level of severity, 50 to 100 a higher level, etc. It required a lot of effort and money to acquire 50 images, typically via the mail.
In the internet era, using number of images as a marker of severity no longer works, because the images are out there on the internet and can be dowloaded much more easily. As Judge Jackson said in her hearing, in a single 15 minutes computer session someone could dowload enough images to get a 30 to 50 year sentence recommendation out of the current guidelines. If offenders were sentenced according to the guidelines, it would essentially mean that the change in technology has turned everyone into a severe offender. And yet, in the earlier world where images had to be ordered and sent by mail, acquiring them took more time and effort and probably had a greater incentive impact on production than a few minutes of downloading.
Most federal judges (reportedly, 70%) have addressed this issue by using their sentencing discretion to give below-guidelines sentences, as Judge Jackson has done.
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