Mimesis Law
27 May 2017

Kopf: How Much Punishment Is Enough For Kiddie Porn Watchers?

August 17, 2016 (Fault Lines) — Let’s say you have lived a fairly normal life as you turn 47.  You spent two years in college before returning to help you dad run the family auto parts business. You have a loving wife, some kids—two girls and a boy, all of whom are normal teenagers. You own an auto parts store (inherited from your father) and enjoy your nice split entry house. You are white man* with no criminal record.

Your family has a net worth of around $150,000, consisting mainly of the equity in the jointly held family home plus the net value of the auto parts business, assuming it is a going concern.  You make around $80,000 a year and your wife, a school teacher, makes around $42,000 per year. Your business is highly dependent upon floor-plan financing from a local bank.

So evening comes, and you descend to the “man cave” in the basement, you access your Dell and scroll down to your peer-to-peer (P2P) file sharing program to get kiddie porn. You don’t know, really, why this stuff fascinates you. You also don’t fully understand how your P2P works, but you do know that your computer now automatically shares kiddie porn with other like-minded individuals and they in turn share with you. In fact, your particular P2P program does not have an “on and off” switch.

Anyway, you spend several evenings a week “privately enjoying” videos of little girls getting screwed.  The “Vicky” series is a favorite. You are at once repelled and attracted.  Never, in the physical world, would you watch such things being done to a child. In the same vein, not even the devil incarnate could force you to do such things to a child.

Then, there is a knock at the door. The law enforcement officers have a warrant to search your home and to seize your computer.  You don’t know it yet, but your life has all but ended.

The next thing you know you are charged in federal court with receipt and distribution of child pornography under 18 U.S. C. § 2252A(a)(2).  It carries a statutory minimum sentence of 60 months in prison, a fine, and up to a life time of supervised release.

The prosecutor could have charged you with simple possession under 18 U.S. C. § 2252A(a)(5), but your use of the P2P convinces her that such a charge is too lenient because it carries no mandatory minimum prison sentence. Besides, she wants to make an example of you and others like you who exchange the images of horrific child sexual abuse like baseball trading cards.

You also learn that Carol Hepburn, an extraordinarily competent and zealous lawyer, who represents “Vicky,” will come after you for restitution in the criminal case. Some amount of restitution is virtually certain as a part of your sentence. See 18 U.S. Code § 2259. Thus, you will have the prosecutor and Ms. Hepburn going after you.

When the charge hits the papers in your medium size city, your wife decides to file for divorce. She tells you she still loves you but if she wants to keep her job as a teacher, she must put as much distance between you and her as is possible. In truth, you realize that she is simply so repulsed by what you have done that she can’t stand to be around you.

Using an unsecured line of credit, you hire a good lawyer who has a reputation of helping men like you get the best deal possible. She tells you that the only thing you can do is enter a guilty plea and hope for the statutory minimum. She sends you to a highly regarded clinical psychologist who is also a lawyer for a thorough evaluation. The female psychologist writes a long report concluding that you are not a pedophile and there is virtually no chance that you would ever have sexual contact with children.**

The lawyer also tells you to submit to a polygraph examination conducted by a government employee.  She warns you first that that taking the polygraph is a huge risk because polygraphs aren’t accurate in many cases and if you have had sexual contact with a child the polygraph is likely to pick it up. You submit to the examination, and you pass it with flying colors.

Your lawyer then goes to the prosecutor trying to get the government to charge you with possession only. That doesn’t work and so she negotiates a Rule 11(c)(1)(C) plea agreement that calls for a 60 month prison sentence (the mandatory minimum), ten years of supervised release and no fine, but an agreement to pay restitution to “Vicky” in an amount of $20,000. You also agree to pay all “special assessments.” Ms. Hepburn signs off on the restitution amount. If the judge accepts the plea agreement under the Rule, the judge will be bound to impose the sentence called for in the plea agreement.

Your divorce is final. Your wife gets the home and the equity in it.  Your bank has formally informed you that it will no longer provide floor plan financing for the business. The parts suppliers are clamoring to be paid. You make a deal with a competitor to “buy” the business by assuming the debt for the consigned parts. You get $5,000 to boot. Coupled with your car, a small amount of cash in your business checking account (which you have mostly drained to pay off the line of credit you used to hire your lawyer), and the $5,000 from the sale of the business, you have a net worth now of about $15,000.

Most lawyers who practice in federal court know about the $100 special assessment imposed upon all convicted defendants. But effective May 29, 2015, there is an additional special assessment for men like you. 18 U.S. Code § 3014(a) (“Beginning on the date of enactment of the Justice for Victims of Trafficking Act of 2015 and ending on September 30, 2019, in addition to the assessment imposed under section 3013, the court shall assess an amount of $5,000 on any non-indigent person or entity convicted of an offense [like yours].”) Since you are not “indigent,” you will be required to pay this additional special assessment of five grand after you pay off “Vicky.”

Following completion of your 60 month prison sentence which was definitely not fun given your offense, and begin your supervised release term of 10 years, you meet with your federal probation officer.  He reminds you that you have three days to register as a sex offender. Additionally, and given your employment at McDonalds, the probation officer insists that you pay $100 per month on your restitution obligation and your “special assessment.” You leave the probation officer, take the elevator to the first floor and pass through security onto the streets.

If you are a rational person, your next stop will be the public library.  There you can access a computer for free. It is time to begin searching for cheap but painless ways of killing yourself.

Richard G. Kopf
Senior United States District Judge (Nebraska)

* The Sentencing Commission has found that white males comprise as much as 93 percent of offenders who do not produce or manufacture child pornography. U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 304 & tbl. 11 -2 (Dec. 2012) (Chapter 11 deals with recidivism). Indeed, the Commission has stated that such offenders are “overwhelmingly white.” Id. at 308  n.56.

** In the foregoing study, the known “contact” sexual recidivism rate was 3.6 percent for consumers who were not producing child porn. Id. at 310.

33 Comments on this post.

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  • defendergirl
    17 August 2016 at 10:58 am - Reply

    Judge,

    Don’t forget the residency restrictions that will render you almost certainly homeless or able to stay only in a moldering extended stay motel. And the supervised release with sex offender contract which requires group “therapy”, lie detector tests and the plethysmograph, which I urge your more sensitive readers not to google. And the ban on any access to the internet or possession of any device capable of accessing the internet, including smartphones, which will keep you from getting a better job because everyone wants an online application these days.

  • Richard Kopf
    17 August 2016 at 2:18 pm - Reply

    defendergiral,

    Thanks for adding, ever so correctly, additional reasons for gun in mouth.

    All the best.

    RGK

    • losingtrader
      18 August 2016 at 11:02 pm - Reply

      From a federal CDL friend of mine, the “gun in mouth” usually happens before the trial.
      BTW, on an unrelated note, I’ve been eating at Subway almost every day.

      • Richard G. Kopf
        20 August 2016 at 10:29 am - Reply

        Losingtrader,

        Subway may be good for you, but horrible for B. Be damn sure she gets steak, and the best cuts too.

        All the best.

        Rich

        • losingtrader
          20 August 2016 at 12:44 pm - Reply

          It was a bad Jared joke

  • E Hines
    17 August 2016 at 3:11 pm - Reply

    Color me unsympathetic toward one who commits this sort of crime. Even just watching contributes to the creation and support of a market for such traffic. Any rational adult human being is fully capable of understanding this; if your man is rational (and his bought and paid for psychologist has implied so), he has no excuse for his actions; he did them in full knowledge of their consequences. His only excuse for not understanding and for acting consistently with that nonunderstanding is that he’s not rational. Frankly, I’m suspicious of the psychologist who delivered the diagnosis. The man likely belongs in supervised treatment, not in his current circumstance. Which wouldn’t absolve him at all; a major part of behavioral treatment is the concept of accountability.

    When medical technology can generate a cure for this sort of behavior, maybe a suitable punishment would be less than a lifetime. Maybe a suitable punishment would be less than a lifetime even before that cure’s development. But we don’t have that cure today, and today society needs to be protected from such as he, and that requires a lifetime of protection. I wouldn’t be willing to bet my daughter’s life on this person’s not being one of those 3.6% recidivists. Put a pistol that has a 3.6% chance of firing to your daughter’s head and see if you’ll pull the trigger.

    And the ban on any access to the internet or possession of any device capable of accessing the internet….

    Which presumably includes the free computer access at the library, and so a probation violation and a trip back to gaol if he’s caught.

    …additional reasons for gun in mouth.

    Which he’s also not allowed to possess. He clearly would have chosen to not think at all about his behavior. Even now. Squeezing his trigger would make him judgment proof (in this life), but it would not protect the one who provided the gun.

    Eric Hines

  • bacchys
    17 August 2016 at 3:47 pm - Reply

    Mr. Hines demonstrates fully the source of the problem in this area of law.

  • Pros10
    17 August 2016 at 5:09 pm - Reply

    Why such a sympathetic approach? There are far more criminals who experience loss of family, employment, and are convinced their lives are over after conviction. Why the sympathy with kiddie lookers? And one who does this should not be considered Normal in any sense. The majority of the cases have had serious elements of mental health related issues, or use viewing child porn as a method to escape some serious issues. I have rarely came across a “normal” offender or one that did not have some serious underlying issues.
    Yes, limitations while on supervision can be complicated, but the point is to limit the possibility to reoffending. Many do possess social skills; therefore, can obtain employment. In fact many more are employed than the several drug hustlers or the white collar workers that are beneath getting line employment. As for the punishment of the registry, that is a different animal to tackle.
    Where the viewing of child pornography may not be directly be hands on involvement with children, but in order to be viewed it must be produced. The simple basics of supply and demand. The fact that a child must not only go through that torture but then to be videotaped and humiliated with it broadcasted world wide, that is enough for tough punishment.

  • Brad
    17 August 2016 at 5:50 pm - Reply

    I feel even worse for those who have had this kind of contraband planted on their computers.

  • Sum
    18 August 2016 at 1:29 am - Reply

    How much punishment is too much punishment for kiddie porn watchers? If your innocent daughter/granddaughter was “the little girl getting screwed” in the videos for the pleasure of millions of people who enjoy watching a child’s innocence being taken away, her future basically ending there( the problems she will have as an adult she will likely never overcome),basically taking part in the rape of a child….. If it were your daughter, granddaughter or yourself then I doubt this question would be asked. If it were, would you be as sympathetic towards the kiddie porn watchers?

    • Chris Broekhof
      18 August 2016 at 8:03 am - Reply

      Victims punishment is usually two eyes for one. And in this case that holds true. Once completing prison you’re subjected to much more scrutiny, and very little of it has been proven helpful. If punishment is going to be a tool to help us reduce this problem instead of just deal with it then it should be done right. This does mean asking questions you wouldn’t normally ask. And since the good judge does this for a living, I’m happy he is asking, even if I don’t like the implication. I’m not going to let my sympathy for victims cloud my judgement since it’s far more likely to have a negative outcome for all parties more often then not. In this you will never find the problem when you generalize it, but I’m sure it’s slapped more judges in the face after years of sentencing people in the example the Judge opened with. These are the people that can be rehabilitated with some ease. But you propose, instead, that we throw them away and forget about them. Man, if we can stop this by having a surefire way of getting these people to stop this, to break the cycle, isn’t that worth any little question no matter how precious that little child you have so dear in your heart is? To save more in the future? To stop this from ever happening?

      I’m still shocked to see that some people are so set in their ways after Hollywood has been screaming at them every example in the book on exactly why they shouldn’t shun any such question. They take to every other lie Hollywood sells, but not the truths staring us straight in the face. It’s terrible when something bad happens to any child anywhere, but not amount of terrible you do to that criminal will make the world a better place. Not for the victim, and not for the rest of us.

  • Sum
    18 August 2016 at 2:38 am - Reply

    Judge,
    I realize since my last comment said “awaiting moderation”, that it will not be posted & that’s fine I don’t want it to be. I’ve never posted a comment to a blog & until recently I have never read blogs, let alone a judges blog. I’m not a judge, I’m not a lawyer.( I’m sure it’s obvious by my under/over use of punctuation. My step father is and his correct use of commas, periods, quotations, etc in. A simple text message irritates me to no end. Anyway, back to my point. My daughter… Oh my daughter. If you could meet her you would fall in love. I know all mothers say that, but my daughter is something. ( maybe all daughters are)! She has the sweetest spirit. Her heart, I love her heart. She is one of those kids that adults don’t mind being around. She has this long blonde hair and two perfect little dimples when she smiles. She is smart too. She excels in school and to watch her dance at a recital, she’s great. She’s 8 years old. She revealed that she had been sexually abused. To have this beautiful child that you love inside out, to have someone hurt her… Words can’t explain what that does to your soul daily. The physical pain ended quickly for my child, but I spend most days and nights wondering if it has mentally. I’m always worried.To hear your baby tell you that she doesn’t feel normal anymore and to see that little spark in their eyes gone ( that spark kids have that’s untouched by evil or by the world), to see her feel guilt because she thought it was her fault … I can’t explain that feeling. If I could take what happened to her and have it happen to me a thousand times over just so she would never know wicked,I would. Most days it feels far behind us, but I find myself up late nights unable to sleep questioning, replaying every scenario in my head. So late nights when sleep will not come, I have googled how these type of court cases go, what to expect in court etc…. That’s how I came to see your blog, this blog. I think my previous comment was made in shock and a little anger. I don’t want to tear you down for your opinion nor am I one of those people who hide behind a user name and computer to make hateful comments. I have had time to sit back and think about it. The only emotion I feel is completely disheartened by your post. If you, a judge feels a little sympathy for these people and their lives… Who will stand up for the little girls in this world ? The same little girls that are being raped, tortured, and humiliated are the same women who I take care of everyday in the hospital who have came in beat to a pulp by their husbands or overdosed on drugs, & I’m sure they are the same women who come through the court systems. I get the statistics that most people who watch kiddie porn do not abuse children,but kiddie porn is made for one reason… Money. If there was no profit in kiddie porn it would not be made. My child or any other child would never know or experience the torture, humiliation and hurt that they do now, they would have no knowledge of these kinds of people unless the happened to come across a judges blog late one night.

    • Richard G. Kopf
      18 August 2016 at 11:24 am - Reply

      Sum,

      I will use your heartfelt comment to reply, albeit very briefly, to you and others who were angered or disturbed by my post.

      First, please don’t imagine that I represent other judges. I speak only for myself.

      Second, I have handled so many child pornography cases that it is not too much to say that my soul has been seared by the horror I have seen inflicted upon children. In a terrible way, I suppose nothing shocks me anymore.

      Third, I did not write about those who produce child pornography. For those offenders, I shed no tears when I sentence them to the maximum allowed by law.

      Fourth, I am convinced that the war waged against consumers of child pornography uses a nuclear weapon which should be reserved for the producers. Otherwise, we fill our prisons with child porn addicts just like we fill our prisons with drug addicts. The war on drugs has failed by focusing on addicts, and the same is true for addicts of child pornography. That said, I have no solution to the problem except to say that too much prison time for addicts helps no one including the victims.

      Thanks again for your comment. All the best.

      RGK

      • Andrew Fleischman
        18 August 2016 at 1:31 pm - Reply

        Judge Kopf,

        You are making a very important point. There are so many years in a person’s life that we can take. And there needs to be a meaningful difference between how we punish people who hurt children, and those who watch videos of children being hurt. There needs to be an incentive for those who have viewed pornography not to further transgress.

        If punching a man in the nose and murdering him with a shotgun carried the same sentence, there’d be no reason not to carry through once a fight began. Might as well be hanged for a sheep as a lamb.

  • Dot
    18 August 2016 at 3:30 pm - Reply

    Thanks for writing this up. As a wife and mother my sympathies are for the children affected including this defendants.

    While I agree with child porn viewers paying $5,000 the $20,000 to the favorite or identified victim doesn’t sit right with me. Money can not restore the children others have sexually abused and exploited to supply the demands this man sought.

    Decades of volunteering with various orgs for children proved to me the harm to abused/exploited children as well as the children of defendants and all affected families. Crisis counseling is great but it doesn’t address the ongoing trauma these kids face. During the five years this father is incarcerated his kids will be victimized over and over again.

    Economic hardships are a reality to defending any kind of criminal charges. Five year incarcerations and the loss of profession aren’t exclusve to child porn cases. Zealous prosecutions aren’t limited to child porn viewing or production. All kids of incarcerated parents overhear ‘what a shame… too bad parent didn’t think about’

    The thieving CPA kids don’t face suspicion that dad abused them or their peers. These kids aren’t hearing reassuring affirmation that they are ok and safe now from the same well intentioned adults who step over themselves to say this to known abused/exploited children. New schools or neighborhoods aren’t a safety net for children of these defendants. All the normal insecurities are compounded with the fear of discovery, stigma and ostracism.

    Back to the monetary remedies. Imposing a minimum $5,000 fee towards a victim restoration fund makes sense. Granting his favorite ‘Vicky’ 20k does nothing to relieve the societal burden towards identifying or restoring the unknown or lesser favored victims. Tax funded expenditures for victim services and funding organizations like NCMEC to identify victims are a burden on society that should rightfully be shifted to perpetrators and willing participants.

    5k from viewers doesn’t seem unreasonable nor does doubling the fee for pre-adolescent children or higher for infant/toddlers. Indigence on paper shouldn’t be a free pass for viewers of child porn. If convicted child porn viewers used P2P for stealing copyrighted music or video content they couldn’t plead poverty to escape the civil judgment for their hobby.

    That’s my two cents as a mom who prefers to leave issues of mandatory sentencing to those with experience in all the variables it doesn’t address.

  • Jason Peterson
    18 August 2016 at 5:15 pm - Reply

    How does downloading free pictures create a “demand”?
    But downloading free music is “bankrupting the music industry”?

  • Jason Peterson
    18 August 2016 at 5:17 pm - Reply

    And if there really is a multi-billion dollar a year child porn industry, why is the government working so hard to protect the financial interests of these child pornographers by targeting people who pirate their products?

  • maz
    18 August 2016 at 10:18 pm - Reply

    One of the problems with criminalizing simple possession — or, in these days of streaming video, merely the viewing — of a class of content is the way it manages to pound round pegs into square holes with no concern as to the nature of the peg. Based on the assumption any depiction of a minor engaged in sexual activity not only documents a crime but encourages the commission of further crimes, it is possible for one to be arrested, tried, and sentenced for possessing images of a model or actor who died of natural causes decades before the defendant was born, the creation of which was not illegal.[1]

    As well, content legal today may become illegal tomorrow, based upon newly available information. Take, for instance, the case of Traci Lords, a performer who represented herself as of legal age, who appeared to be of legal age, and who consistently played characters aged 18 to the mid-20s. All-in-all, not an actress one would expect to appeal all that much to pedophiles, but one whose films and layouts are illegal to possess in this country. Similarly, see (or, rather, *don’t* see) the infamous 1951 stag film “Smart Alec,” one of the most widely distributed of the ‘smokers,’ which starred stripper (and later Warren Committee-cited witness) Candy Barr, who was not obviously 16 years old at the time. Featured in virtually every history of the blue movie and innumerable compilations of stag films and early erotica, its current illegality would make criminals of countless video store owners, if only video stores still existed.

    Admittedly, possession of such content does not appear to make up a substantial portion of child porn cases — or at least, as viewed from the outside, it doesn’t. But such prosecutions are not unheard-of, either — just ask Paul Reubens. While I am sympathetic to the argument that the purchase of contemporary child pornography encourages the production of more, I have concerns about treating historical imagery and erotic content that, despite appearances, turns out to include the depiction of a minor the same way.

    __________

    1. Or, at least, not illegal because of the participation of a minor.

  • losingtrader
    18 August 2016 at 10:37 pm - Reply

    Interesting post. I guess I should not be surprised at the responses as anytime someone is charged with an offense involving the words “children” or “terrorism,” otherwise ordinary, rational, prudent people lose their ability to be rational and prudent.

    Even with terrorism, someone who is turned on by watching ISIS beheading videos can , I believe, share them to his or her content.

    Arguably, one of the reason for penalizing viewers of child porn is that it leads to a greater proliferation of the material. The example you’ve given is pretty clearly child porn, but I bet most people are not aware the child porn statute requires neither sex nor nudity (US v. Knox in which the Solicitor general initially interceded on behalf of Knox). I like pointing this out because I believe it’s a “seminal” case and you share my penchant for twisted humor.
    It’s not always clear whether an image is, indeed, child porn.

    Circulating beheading videos almost certainly emboldens terrorists to behead others.In these there is always the beheading.
    Knowing that downloading or circulating (or even just looking at) a single image of children taken at a swimming pool or a beach in such a way a jury considers it “lascivious” versus looking at actual sex between children or children and adults might tone down the opinions of some of the many responses.

    Like I said, I’m not sure how often this comes up, but it seems this offense can often reach about as close to a thought crime as any statute comes (wow, more twisted humor for you),and thus, given the low recidivism rate, the penalty for non-paying or producing viewers should be relatively low.
    I got on a tear years ago researching case law on this issue after I read about a reporter being prosecuted while doing a story. It’s amazing how much of the case law is more like Knox and less like the example you gave.

    In response to your post, and many commenters, it’s just my opinion every adult knows better than to look at images or videos of Vicky if she’s having sex with another child or adult. But, let’s say instead of sex with Vicky , it was a snuff film. Should we prosecute everyone who watches it?
    Should every viewer owe Vicky’s estate money? A $100k Subway gift card from Jared?

    Now, please tell me these cases you sentence aren’t anywhere close to the line of a potential thought crime; that they are clearly, beyond a doubt , kiddie porn.

    Only then will I allow you to press this button after sentencing:

    • Richard G. Kopf
      19 August 2016 at 2:58 pm - Reply

      Losingtrader,

      Virtually all the cases I see are truly child porn cases and not even close to thought crimes. But your point is important.

      One case I had seven years ago involved mostly partially clothed post-pubescent teenagers. Interestingly, the porn site was the subject of an extensive investigation by Europol under the code name “Koala.” If I remember correctly, Europol was interested in an Eastern European scheme that involved luring poor parents with teenagers to a “business” where the kids would be given the opportunity to become “models” for a magazine photo shoot.

      But even that one was not close to a thought crime. While the stuff was comparatively mild, it was clearly child porn. That said, I did vary to probation in that case for the reasons I articulated in detail in a case styled United States v. Campbell, 738 F. Supp.2d 960 (D. Neb. 2010) (which can be obtained using Google Scholar). In that case, I focused on the harm likely suffered by the teenagers as compared to the harm suffered by the victims in most other child porn cases.

      As for the easy button, thank you kindly for providing me with it. It is a good reminder.

      All the best.

      Rich

      • losingtrader
        20 August 2016 at 11:51 am - Reply

        So, I’ve read your opinion.

        Since I had to slog through this short opinion, I would likely contract and die of a disease before finishing your 400+ page opinion. OMG, how many footnotes did you have on a 400 -page opinion?

        I guess you get to press the Easy button because there was actual nudity and there was a focus on the groin in a lascivious manner, whatever the hell that means in your mind. It is indeed sort of a thought crime–it’s what YOU thought about the words,”lewd and lascivious.”

        You did fail to mention your basement when you gave the reasoning for “reviewing” the images.

        Seriously, given the state if the law, someone who cuts swimsuit and underwear ads from the Sunday paper in just the right manner seems subject to prosecution. That makes it a thought crime.

        • Richard G. Kopf
          20 August 2016 at 4:11 pm - Reply

          losingtrader,

          Actually, I had an intern review the images and prepare an Excel spreadsheet describing what he saw. He was thinking about law school and a college professor friend suggested the kid spend his summer before his senior year with us. He did a great job, but, I should add, decided not to go to law school.

          All the best.

          Rich

          PS Because he was just 21, everyone called him by the nickname one of my clerks gave him. The English spell it “Foetus.”

          • losingtrader
            20 August 2016 at 7:39 pm -

            Hahahaha.

            Oh, yeah, the “intern” excuse.

            Scarring late term fetus’ isn’t enough for you. You have to scar a VERY late term Foetus.

            I may have to write my SJ thesis on the relative presence of child porn prosecutions in areas with and without basements. I’ll check with my thesis advisor.

  • Mark M.
    19 August 2016 at 3:07 pm - Reply

    There is absolutely no evidence that mere viewers of kiddy porn creates or supports the market. If you are “fully capable of understanding” the opposite, please provide facts; not heart-rending feelz or “common sense.” Your search for such facts will educate you if you’re “rational.”

  • Jason Peterson
    19 August 2016 at 10:07 pm - Reply

    “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
    Thurgood Marshall

  • Chris
    22 August 2016 at 2:00 pm - Reply

    Judge Kopf–

    Short of destroying this hypothetical man’s life, while at the same time promoting respect for the law, what do you think would be an appropriate punishment?

    • Richard G. Kopf
      19 September 2016 at 7:01 pm - Reply

      Chris,

      I have been ducking a response ’cause I really have no good answer.

      In cases where there is a statutory minimum of 5 years my typical sentence is between 60 to 97 or so months.

      Where there is no statutory minimum I would guess my typical sentence is somewhere between 36 and 48 months.

      In a very unusual case, I just put a man on probation. I have done that in one or two other cases where there was no statutory minimum.

      All the best.

      RGK

      *The cases mentioned in the response were not production cases.

  • John
    17 September 2016 at 11:10 am - Reply

    Judge,
    You neglected to mention this study (info taken from Wikipedia):

    In 2009, a study conducted by psychologists Michael Bourke and Andres Hernandez was published in the Journal of Family Violence. The results suggested a strong link between viewing child pornography and sexual abuse. The findings went against the conventional and widely held belief that while abhorrent, a person passively viewing child pornography had an insignificant causal link with that person actually molesting a child.[3]

    In what is known as the “Butner Study,” Bourke and Hernandez analyzed data on 155 men convicted of child pornography offenses, who took part in an 18-month treatment program between 2002 and 2005, during which the men filled out assessment measures including a “victims list,” where they revealed the number of children they had molested in the past.

    74% of the men denied molesting anyone when they were sentenced. However, by the end of treatment, 85% had admitted to sexually molesting a child at least once. The numbers are more than twice that of other studies. In explaining this discrepancy, Bourke said, “Our treatment team worked for an average of 18 months with each offender, and the environment was one of genuine therapeutic trust” that encouraged the men to tell the truth about themselves.[4]

    A critique of the study is that the use of a population of participants in the most intensive sex offender treatment program offered in the federal prison system skewed the sample. Offenders had to have received at least a thirty-six-month sentence to be eligible for the program. Melissa Hamilton argues, “These offenders may well, then, have represented particularly dangerous offenders who were a high risk to children since they had been prosecuted, convicted, given more than minimal prison sentences, and accepted into the limited-space program because of a perceived need by themselves and program clinicians for a lengthy and intensive residential program.”

    • Richard G. Kopf
      19 September 2016 at 6:54 pm - Reply

      John,

      I apologize for my late reply. Oddly, and among other duties, I have been busy with a nasty child porn production case. See my post this coming Wednesday.

      I know a lot about the Butner study including the strengths and weaknesses. I didn’t find it especially relevant to my post on child porn consumers. I do credit your point, however, that a certain segment of child porn consumers may well have had sexual contact with children that was never proven.

      That said, given your interest, I suggest you read the 2012 REPORT TO THE CONGRESS: FEDERAL CHILD PORNOGRAPHY OFFENSES published by the Sentencing Commission, and particularly chapter 11. The known “contact” sexual recidivism rate for non-production offenders was 3.6 percent. If you include non-contact sexual offenses the recidivism rate was 7.4 percent for non-production offenders.

      The foregoing suggests potentially contradictory things: (1) the BOP’s treatment is unusually successful for a problem that is typically thought to be intractable and extremely long prison sentences are not necessary to deal with consumer cases or (2) the Butner study overstated by a significant percentage actual contact offenses by non-production child porn consumers.

      You can find the Sentencing Commission study at http://www.ussc.gov/research/congressional-reports/2012-report-congress-federal-child-pornography-offenses

      All the best.

      RGK

  • What’s The Deal With White Guys And Child Porn?
    21 September 2016 at 9:01 am - Reply

    […] *As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers. See here. […]

  • A
    21 September 2016 at 7:07 pm - Reply

    Thanks for this post. It’s spot-on. The consumer is typically someone who leads an otherwise normal, decent life, and has no clue why they are attracted to this material. It’s not the caricature that you’d see on TV; it’s not some monster who grows up planning to hurt people. It’s a person struggling with an issue that society won’t talk about, and won’t provide any meaningful help for. As usual with any sexual matter, we’re anything but rational. All society wants to do is destroy this person’s life, or make it so bad that any sane person would take his own. For those of us who care about all humans, who want to prevent the suffering of victims, who want to help prevent offenses, who want to help potential offenders get help, and who are rational, there must be a better answer. But we won’t find it if we don’t try.

    • Richard G. Kopf
      21 September 2016 at 7:52 pm - Reply

      A,

      I agree with everything you have written. Thank you.

      All the best.

      RGK

  • Joseph Zacher & The Problem With Sex Offenders In The Back Yard
    3 October 2016 at 8:07 am - Reply

    […] Because of his crimes, he’s forfeited any sympathy, and what he can look forward to is a lifetime of homelessness, followed by charges for “failure to register as a sex offender” because he has no address to register in the first place. He’s going to end up doing life, either all at once or on the installment plan.  To paraphrase Judge Kopf: […]