What is the appropriate punishment for someone who “stumbles” across a child porn site and gets caught downloading/watching its illegal content? Same as actual rape and murder?
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In an interview to British paper The Telegraph, John Grisham, best-selling legal novelist, said that America wrongly jails many people for viewing child pornography:
“We have prisons now filled with guys my age–60-years-old white men in prison who’ve never harmed anybody…these men go online one night, probably had too much to drink and end up on child-pornography websites. These are people who haven’t hurt anybody. They deserve some type of punishment, whatever, but 10 years in prison? Grisham made sure to point out that he has “no sympathy” for pedophiles. “God, please lock those people up,” he said. “But so many of these guys do not deserve harsh prison sentences, but that’s what they get.”
Before we all run into the shed out back and grab our pitch forks, torches and beloved guns and head out to John’s house to show him what’s what (an instinct I understand and share, to a point), lets do a little critical thinking and analysis:
1. Almost all of us would agree that we are entitled to our thoughts and fantasies, including the good, positive, warm and fuzzy ones, as well as the middle of the road erotic and sexual ones, to the dark and macabre disturbing ones. As long as they play in our mind and don’t get acted upon, we are OK.
2. Most of us would agree that punishment for the spectrum of behavior from a socially unacceptable act to a full blown premeditated criminal act of homicide with special circumstances (the one you can get the death penalty for), should always be measured and fit the act or crime one is convicted of (Bill of Rights 1689 and 8th amendment 1791 no cruel and unusual punishment).
3. Most of us would agree that crimes against children are especially heinous and should be appropriately treated and punished.
4. Finally, most of us would agree that deviant behavior is a mental disease and that we should build rehabilitation and treatment (depending on the act or crime), into the penalty and societal and criminal justice system response. This serves both the purpose of building a civilized enlightened society, as well as making sure these vile acts (in this case the exploitation, rape of children and production of child pornography) are not perpetrated again.
American society is in agreement that the distribution and possession of child pornography is a federal offense that should be punished (production of child pornography and sexual exploitation of children are federal crimes). The controversy (and what John Grisham is talking about) is the one-size-fits-all approach to punishment, in a time when sexting and online porn are so prevalent. The advocacy organization Families Against Mandatory Minimums studied these issues over the past 15 years, and indicate that the length of federal sentences for child pornography have increased 500% (and we are talking about receipt, possession and distribution).
These sentences can start at a mandatory sentence of 5-10 years for receipt of child pornography materials. One example, is the case of Eric Rinehart (34-year-old Indiana police officer), who was in a consensual relationship with two young women, 16 and 17 years of age (age of consent in Indiana is 16), and using their camera, took pictures and later a video of his girlfriends. The young women sent him the digital pictures, which he downloaded to his computer. He was convicted of producing child pornography and is serving a 15-year mandatory sentence. (Regardless of the obvious unethical nature of relationship of a 34-year-old police officer with 16 and 17 year old young women, it is not illegal and 15 years seems a harsh sentence under these circumstances.)
Child pornography is clearly a crime that makes us cringe, and rightly so. It is hard for us to comprehend how anyone can exploit, rape and abuse children, sexually or otherwise. However, we cannot build a justice system based on emotions. We must build it on evidence, and the evidence shows us justice is not served by imposing longer and longer mandatory sentences. Prosecutions, cases and sentences should be individualized, fair and proportionate and we must make sure they advance the purposes of sentencing: deterrence, public safety, just punishment and rehabilitation.
I don’t think John Grisham is protecting pedophiles or private consumers of child pornography. He is simply calling for a fair and just system to provide the appropriate punishment for each individual act or crime. It’s as true in the mandatory sentencing for drugs offences, as it is true here. Punishment that fits the crime is the corner stone of our justice system and must be our guiding and controlling principle.
Photo: John Grisham /telegraph.co.uk
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I most certainly do not agree that “deviant behaviour is a medical disease”. That’s the sort of rubbish spouted by American medics/psychiatrists and those who make a fortune out of purporting to “treat” the supposed disease as you suggest. Accessing indecent images of children being raped is exactly as you say – a behaviour, which means people CHOOSE to behave this way. British jails are most certainly not full of men in their 60’s who happen to have stumbled upon a child porn site whilst drunk. In Britain over 70% of those convicted of possessing obscene material do not receive… Read more »