Child Porn Gets Longer Sentences than Rape, Molestation

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By Jessica DaSilva

July 24 — Discrepancies in sentencing for sexual offenses often reflect the difficulty prosecutors face in trying contact crimes versus pornography possession at both the state and federal levels, several law professors told Bloomberg BNA.

Defendants who commit sexual contact crimes, such as rape or molestation against children, often receive lighter sentences than those charged with possessing child pornography, academics agreed. That discrepancy can be attributed to money and quality of evidence, they said.

The cost of housing prisoners and trying defendants impacts state agencies in a way that federal agencies don't face, they explained.

Yet both federal and state prosecutors face an easier trial for child pornography crimes because they do not involve conflicting testimony or difficulty gathering physical evidence, which results in higher prosecution levels at both the federal and state levels, they said.

At the federal level, sentences for child pornography can be even harsher thanks to a nearly unlimited budget and limited jurisdiction to prosecute for sexual contact crimes, they said.

Commerce & Porn

Federal crimes for child pornography are relatively new, said Corey Rayburn Yung, a professor at University of Kansas School of Law. As the Internet became widely used in the ‘90s, child pornography became easier to distribute and possess, Yung explained.

Congress was able to go after child pornography possession because it falls under interstate commerce, according to Carissa Byrne Hessick, a professor at the University of North Carolina School of Law in Chapel Hill.

In the past 10 years, Congress slowly increased sentences for child pornography crimes, Yung and Hessick said.

Part of that increase fits in with an overall trend in federal sentencing, said Heather Ellis Cucolo, an adjunct professor at New York Law School and director of its Online Mental Disability Law Program. Federal sentencing in general increased over the past two decades, Cucolo said.

‘A Drop in the Bucket.'

Enforcement of child pornography laws is not controversial because the federal government does not face monetary constraints, Yung explained. Federal prosecutors try fewer people and have more resources, Hessick said.

“Prison costs to the feds are a drop in the bucket so it's easy to mark it up as part of the federal budget,” Yung said.

Meanwhile, prisons and jails could take up as much as 10 percent of a state's budget, Hessick said.

“Economists would have to say that states have to internalize the costs, but the federal government can choose to bear cost or not bear the cost by adjusting its enforcement strategy,” she explained.

Additionally, federal prosecutors are not allowed to engage in plea bargaining, said Cucolo. Because states must be more cautious with their budgets, they can plea bargain on harder cases to pursue easier ones, which often deal with child pornography possession, she explained.

‘Luck of the Draw.'

As for enforcement, people are mostly prosecuted for federal rather than state child pornography by chance, Hessick said. Yung agreed, saying most law enforcement conduct sting operations and there is no way to know what agency is conducting it—they all engage in similar methods and offenders won't know who pursued them until after arrest.

“It’s a crap shoot on whether you get federal time or state time,” Hessick said. “It’s just bad luck of the draw for people who get federal charges versus states charges.”

Generally speaking, people possessing child pornography receive harsher sentences because it is easy to prosecute as compared to all other crimes, Cucolo said.

“In many ways, [child pornography] crimes are treated like strict liability crimes,” she said, adding that people either have child pornography on their computers or they don't. No valid defense exists for people who might have accidentally downloaded files from the Internet, she explained.

When prosecuting a sexual contact crime, Cucolo said a number of factors come into play. These factors can include who the victim is and how he or she can assist in a case, she said.

Additionally, Cucolo said if the perpetrator is a relative, family friend, or someone the child knows—which is statistically more common in sexual contact crimes—children and parents are more hesitant to come forward to press charges or testify.

Even physical evidence is difficult to gather, she added. Children who have not hit puberty heal so quickly that doctors might not find evidence of sexual trauma 24 hours after the incident, Cucolo said.

A Backward System

The ease in prosecuting child pornography versus sexual contact crimes has set up an incentive to pursue winnable cases, rather than violent ones, Hessick said.

Because of evidentiary difficulties, Hessick said prosecutors are more prone to offer plea deals to those who committed sexual contact crimes, rather than those possessing child pornography. Plea deals usually come with much lighter charges and sentences, she added.

Meanwhile, no way exists to determine whether those who posses child pornography will re-offend or move on to violent crimes, Cucolo said. Because possession of child porn is essentially strict liability, offenders receive longer sentences, she added.

While Cucolo said she doesn't believe reform for child pornography will ever see sentence reductions, Hessick said the key for reform lies in openness regarding prosecutorial discretion.

Hessick said the public needs to ask more questions about how prosecutors handle sexual contact crimes versus child pornography crimes, how many cases they try versus plead, and how the average sentences differ between the crimes.

“The way we’ve set up our system is that the people who we actually think are the worst offenders are spending less time in prison,” she said.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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