Utah declares pornography a public health crisis

Utah officially passed a resolution declaring pornography to be a public health crisis. Sounds good, right? People need to recognize that using pornography can have lasting negative effects.

S.C.R. 9 Concurrent Resolution on the Public Health Crisis says, in part:

WHEREAS, pornography is contributing to the hypersexualization of teens, and even prepubescent children, in our society;
WHEREAS, due to advances in technology and the universal availability of the Internet, young children are exposed to what used to be referred to as hard core, but is now considered mainstream, pornography at an alarming rate;
WHEREAS, the average age of exposure to pornography is now 11 to 12 years of age;
WHEREAS, this early exposure is leading to low self-esteem and body image disorders, an increase in problematic sexual activity at younger ages, and an increased desire among adolescents to engage in risky sexual behavior;
WHEREAS, exposure to pornography often serves as childrens' and youths' sex education and shapes their sexual templates;

Yes, porn can do serious damage.

NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah, the Governor concurring therein, recognizes that pornography is a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms.

BE IT FURTHER RESOLVED that the Legislature and the Governor recognize the need for education, prevention, research, and policy change at the community and societal level in order to address the pornography epidemic that is harming the people of our state and nation. 

Utah isn't all resolution and no action, though. They also passed HB0155, creating a law that:

• requires that a computer technician who finds child pornography in the course of the technician's work shall report the finding to law enforcement or the federal Cyber Tip Line for child pornography; ...
• provides that the willful failure to report the child pornography is a class B misdemeanor;
• provides immunity for a computer technician who reports in good faith or acting in good faith does not make a report

As if we don't have enough people in our criminal justice system already, now we are going to add computer technicians who don't report images that are or could be considered child pornography.

The law provides immunity for a tech who...acting in good faith does not make a report. How do they decide if the tech is acting in good faith? 

The law says:

good faith may be presumed from an employee's or employer's previous course of conduct when the employee or employer has made appropriate reports

...which means, the more people a tech reports, the safer the tech will be if he or she decides not to report someone.

What child pornography will computer technicians most likely encounter? In a world where nearly every teen carries a phone with a camera and in a world where, as the Utah resolution says, there is an increased desire among adolescents to engage in risky sexual behavior, it is probable that computer techs will discover nude selfies of teens.

Yes, that is considered child pornography and someone in possession of those images can be charged with receiving, distributing, or creating child porn. Serious crimes that carry serious mandatory minimum sentences if charged in federal court. If computer techs report the images to the federal Cyber Tip Line, it is likely that the "crime" will be a federal crime.

How badly do we want to punish teens for what is, for better or worse, normal teen behavior? Do we want a world in which teens take nude selfies ... or a world in which teens take nude selfies and have criminal records?

Is criminalization the only way to discourage unwanted behavior? We saw what happened during Prohibition, when criminalization drove the booze industry underground where violence was the only enforcer. We have seen what forty years of the War on Drugs has gotten us: the recreational drug industry is driven underground where violence is the only enforcer and where illicit drugs are still widely available, less expensive than ever, and often more powerful. 

We know what the outcome will be and yet legislators still try the same failed trick of making unwise and unwanted behavior illegal.

in the interests of justice, a 5-day child porn sentence

In Brooklyn, a man plead guilty to possession of child porn. Federal guidelines recommended a 6.5 to 8 year prison sentence. The judge sentenced him to five days.

Five days.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.

 Ninety-eight pages! This judge wants to be understood.

"Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. 

Not the interests of retribution or the interests of disgust and fear, but the interests of justice.

"It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

The judge recognizes something important: the defendant's five children would be at risk if their father went to prison, he would not get needed treatment in prison, and the man is not a danger to society.

The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

Protecting juveniles includes the defendant's kids as well as kids who sext. Kids who sext, as foolish as they might be, should not be considered producers of child pornography nor do they deserve the long sentences called for in the guidelines.

...Weinstein thought [6.5 to 8 years] was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough.

Seven years of court supervision may not be prison but it is not a light sentence by any means.

The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

More and more people seek out pornography because it is so easily--and so privately!--available on the Internet. Mandatory reporting laws make certain that those who want help to stop looking at child porn have no sure way to get help without being turned in to law enforcement.

Those who favor tougher sentences point out that while many consumers of child pornography may not never [sic] lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children.

Yes, some do. Why not punish them for what they did instead of punishing all child porn downloaders as if they did?

"The viewing has a market-creation effect," Cassel said. "It ends up leading inexorably to the rape of children."

Again, those who rape anyone, adult or child, ought to be punished for rape. Someone who commissions a sexual assault against anyone, adult or child, should be punished.

Those who look at a video of a crime should not be punished for a crime already committed by someone else or for a crime yet to be committed by someone else.

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure.

The entire sentencing structure is built around the idea that every child porn case is the same and every child porn viewer is the same. The particulars of each case ought to matter.

Because those who create vile child porn are so difficult to find and prosecute, the criminal justice system comes down hardest on those who are easiest to find.

Punishment by proxy.

Judge Weinstein has long opposed the lengthy sentences recommended for child porn offenses.

punishing those who recognize that they need help

It has often been said on this blog that looking at images of child pornography is not the same as molesting a child and that those convicted of child porn possession are sentenced in court as if they have molested someone. Another point made here is that mandatory reporting laws prevent someone from getting the help he needs to stop looking at child porn.

California psychotherapist Leslie Bell agrees.

Beginning next month, however, I will be hampered in my ability to hear the full range of my patients’ desires and to assure them that they can discuss these feelings without fear. Under an amendment to California’s Child Abuse and Neglect Reporting Act, psychotherapists and psychiatrists will be required to report to the authorities any patient who “downloads, streams, or accesses images of any person under the age of 18 engaged in an act of obscene sexual conduct.” In the same way that I am required to break confidentiality to report child abuse, I will be mandated to report consumption of child pornography.

Many other states already require therapists to report to law enforcement those who come to them for help to stop using child porn. Did California look at those other states and find that mandatory reporting reduced the incidence of sexual abuse of children? No, because that is not what those laws do.

On closer inspection, however, the law falls short on three fronts: First, it will not protect children from either the production or distribution of child pornography, which is its intent. Second, it violates therapist-patient confidentiality and decreases the likelihood that people will get the psychological help they need to stop accessing child pornography; if the goal is to undercut production by reducing demand, the law will likely have the opposite effect. 

This is all common sense, something found in short supply when legislators are trying to make a law--any law--to look as if they are doing something important.

Reporting people for looking at illegal images does nothing to reduce the incidence of sexual abuse of children and does nothing to stop someone recording that abuse. If it did, we would have seen a correlation by now.

No matter how many are arrested, the supply of child porn images is not diminished even the tiniest bit. Throw a guy in prison for looking at illegal images and the illegal images remain available.

Throw a guy in prison for looking at illegal images and there is no effect on another person's temptation to molest a child.

You know what could affect that temptation? The help of a good therapist.

Mandatory reporting laws make it much less likely someone will ask for help to control his impulses.

The third front on which mandatory reporting laws falls short? Bell says,

...it conflates desire with action.

Yes.

As a psychotherapist, I am not required to report any other illegal activity that a patient may report to me, including drug abuse, drinking while driving, stealing, sexual assault, assault or even a murder that has been committed. This has allowed psychotherapists and psychiatrists to help patients discontinue illegal or potentially harmful behaviors. And it has enabled patients to speak freely about their thoughts, feelings and desires without fear of exposure. Thoughts and feelings are not equivalent to actions. One of the desired outcomes of psychotherapy is that patients will understand precisely this distinction. [My emphasis.]

Looking at illegal images is not the same as doing what is recorded in those images. We do not assume that someone looking at legal adult porn will cross the line to sexual assault and yet that assumption is routinely made about someone who looks at child porn.

Mandatory reporting laws are less about helping to prevent crime or about protecting children than they are about punishing people who ask for help.