When Eric Justin Toth was captured last weekend, he’d been on the FBI’s Ten Most Wanted Fugitives list for more than a year and on the run for five. The former third-grade teacher at Beauvoir, a Washington, D.C., private school, is accused of producing child pornography because he had pictures of young boys on a school camera.
Making child pornography is abuse. What about possessing it? As a group, these offenders—the ones who look but don’t abuse children to create new images—are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years. Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young. Their crimes aren’t “victimless,” as defense lawyers sometimes argue. These men create the market for new images. They are the demand behind the supply. I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering—and about the victims’ efforts to win restitution from these men.
But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves. Is that true? I’ve heard it so many times it’s hard to think otherwise. Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law). The commission did its own research. It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.” (Here’s a helpful 26-page summary.)
This isn’t an easy subject. Punishments for sex offenders move only in one direction in this country—they get harsher. But the Sentencing Commission’s critique should get a serious hearing. Prison comes with a cost for taxpayers as well as the people it incarcerates. And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids.
Some of the commission’s proposals for sentencing reform have the support of the Justice Department lawyers who prosecute sex offenses. Currently, the recommended sentence for child pornography possession ratchets up if the possessor used a computer to download images and also if he possesses hundreds or thousands of images, as opposed to a smaller number. The problem is that because of the Internet, almost all possessors use computers to download images (mostly with peer-to-peer file-sharing programs), and it’s all too easy to quickly amass a large collection. Computers and volume no longer signal greater danger or sophistication. So the commission and DOJ want to eliminate the use of a computer as a reason for upping the underlying penalty, and they want to raise the numbers tied to higher penalties.
Instead, they want judges to focus on whether offenders are members of a group that communicates about child porn online—a common and dangerous practice. The commission and DOJ also want judges to consider higher sentences for crimes that continue over time, show a pattern of activity, or involve sadistic images or pictures of very young children. The recommended sentence range for men convicted of possession who additionally distribute images would also remain higher.
That’s all relatively uncontroversial—which doesn’t mean it will happen, only that it should. More interesting, and surprising, is the commission’s position on the likelihood that child pornography offenders usually go on to commit more such crimes. The commission credits studies showing that “psycho-sexual treatment may be effective in reducing recidivism for many sex offenders.” In a study of 610 offenders convicted of possession or receipt of child pornography (not distribution or production), the commission found that the rate of committing more crimes of any sort was 30 percent, and the rate of sexual reoffending was 7.4 percent.
The first number is similar to the rate of recidivism for all federal prisoners. Bad, but not worse. And the second number, 7.4 percent, is lower than the rate of sexual reoffending for people convicted of contact offenses—in other words, molestation. The commission cites two other studies that back up its findings. Maybe child pornography offenders often do only look, though looking is its own harm. In a fascinating New Yorker piece by Rachel Aviv, University of Toronto psychiatry professor Michael Seto says that men who collected child pornography online “did not have the antisocial traits, like lack of empathy and impulsiveness, that are common to all types of criminals.” Seto calls these men “fantasy offenders.” He tells Aviv, “In this weird, disinhibiting space, which lacks the usual social cues, they may do and say things they would never dare in real life.”
This idea is at odds with the most influential research on pornography offenders: the Butner Study Redux. Published in 2009, the study involved 155 child pornography convicts. After they received sex-offender treatment in prison, 85 percent confessed to sexually abusing children. The volume of abuse was either incredible or terrifying— an average of 13 victims for each man.
The Butner study has been the subject of fierce debunking and debate, and its author has pointed out that this field of research is at an early stage. But the study continues to hold sway. It comes up every time a child pornography bill comes before Congress. It backs up the laws that keep sex offenders in detention after they’ve served their prison terms—a normally chilling imposition of state authority.
Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell. Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say. The question is how many more. Do they really pose a different risk in this regard than other criminals do? The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon. In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.