So it’s time to talk about Child Pornography, or Kiddie Porn. It’s one of the few remaining enforced taboos in America, both legally (since possession of kiddie porn is a crime) and in popular culture. Want to have a kick the dog moment in a crime drama? Have the cops discover kiddie porn in the bad guy’s apartment. On the flip side–want to have the ultimate lure of the taboo? Include some underage sex, particularly incestuous underage sex. Kiddie porn is an easy gut wrench.
But is it reasonable to be such a taboo? I think yes, but not in the way it’s too often applied. The problem is that it’s seen as an evil in and of itself. There are arguments that it’s a slippery slope to child abuse, but solid reputable research backing this up is difficult to find. After all, people aren’t automatons where viewing something immediately leads to trying to duplicate it.
But what is reasonable for its opprobrium is that the act of making child porn is an act of rape. The child cannot consent to posing for nudes, sexually suggestive pictures, or, at the extreme, pictures of them engaged in sex (which they also can not consent to). I believe that consent is paramount and fundamental to sexuality and my political world view stems in a great part from that (see here).
So why not treat it that way?
Pictures of a rape are, legally and morally, not distinguishable of pictures of other crimes. Consider snuff films, depicting a murder, or crime scene videos, depicting a robbery. If these come into someone’s possession, they have a moral and legal responsibility to turn them into the authorities so that they may attempt to catch the criminals. Failure to do so is withholding evidence; i.e. aiding and abetting the crime. So how about prosecuting the person who possesses kiddie porn as an accessory to the crime, rather than with possession?
Doing so would have some substantial benefits. For one, it would focus the attention on the actual crime. As long as ‘possession’ is the crime, it’s too easy to conflate having kiddie porn with ‘possession’ of pot, or ‘possession’ of an unregistered firearm. Possession crimes are frequently not seen as morally problematic so much as a disagreement with the government. Prosecuting for ‘accessory to rape’ moves the focus back to the victim–it’s not the state vs. Joe Porn Addict. It’s the state going after John Rapist and prosecuting Joe Porn Addict for not helping.
Which of course is the second benefit. If someone happens to find or come across some Kiddie Porn, they’d have a lot more incentive to turn it in. There’s no crime if they make a good faith effort to help catch the rapist. The potential plea bargaining options are also obvious.
Now that said, note that ‘accessory’ can still carry serious prison time, if it’s warranted. There’s even a case in Colorado where a woman got life without parole for failing to tell the police where her boyfriend was (just before he killed a cop). There’s also a current case in Wyoming where a guy duped another man into raping the first guy’s ex-girlfriend. Even though the first guy didn’t do the rape, he’s looking at serious hard time.
The point is, we already have experience in the legal system using accessory charges to separate the bad guys from those just caught up in something they shouldn’t be.
The third benefit is that it stops the criminalization of porn where there is no victim. This post in part is inspired by the Chistopher Handley case where a guy got six months in jail for buying ‘obscene’ cartoons.
Cartoons.
Where is the victim in a cartoon? Where is the child that could not give consent? And how much money and effort are we spending going after someone when there is no victim (to the expense of going after others)?
Furthermore, it’s clear that kiddie porn gets used as a ‘camel in the nose of the tent’ argument by those who wish to control the sexuality of others. As long as we concede that there exist materials–cartoons, writing, etc–that are ‘obscene,’ then all we’re arguing over is the definition of obscene. That argument, of course, cannot be won, as it ultimately comes down to Justice Potter’s line, “I know it when I see it.”
But prosecuting kiddie porn possession as accessory to rape eliminates the entire obscenity argument. Now obviously as a writer of erotica, I kind of like that because I’m less likely to be on the wrong end of a prosecution. But the obscenity argument can go the other way too. Imagine a photographer who takes Mapplethorpe style pictures of a 14 year old, but gets a judge or a jury to agree that they’re beautiful and therefore have artistic merit? That means they’re not obscene and this fictitious photographer, plus all the people who own copies of the picture, go free.
But if we bring Child Porn prosecutions back to what they really are–accessories to rape–this does not happen. Instead, it all becomes simple. It’s simply about the crime of doing something to someone who could not give consent.
Now I’ve gone through this entire post focusing on the legal prosecution, but I want to also point to another novel way to deal with child porn and the real crime involved: suing possessors. A woman is suing individuals who download pictures of her abuse (here). I agree with the article that the legal grounds for collecting from someone for additional victimization are new terrain. As a result, I am troubled by the possibilities of where it could go. However, I like the idea for two other reasons. First, there really is a victim here, so we’re not talking about a hypothetical case or obscenity issue. The very nature of the suit forces the case to focus on that fact–that a crime was committed. Second, I like the implied ownership of the images aspect. Since she didn’t (and couldn’t legally) sign a model’s release, she’s implicitly asserting claim to ownership of the photos of her. This makes it an ownership case as much as a criminal damages case.
But civil or criminal, we’re doing ourselves a disfavor as a society to get all worked up about ‘child porn’ as something nasty and evil and obscene. We’d be far better served going after the real crime–the rape involved in creating it–and leave the rest to the side.