counting our blessings

It is Christmas Day and we are celebrating while we wait for my husband to go to prison. Grief and anger could easily rule the day but counting our blessings helps us truly celebrate.

A great source of joy is the knowledge that of all the people who heard our story from us, every single one has been supportive. We did not expect that. We expected people to abandon us and that has not happened. Not even a single time. Family, friends, neighbors, co-workers; people from all corners of our life have offered to help us.

We have been surprised by people who contacted us after seeing the article in the newspaper, people offering prayers and support. Even people we didn't tell ourselves, people who know my husband and me know us well enough to believe that we must know what we are doing.

We are grateful for the love and support. We both have heard stories from others who have been abandoned by someone they love; that is what we expected. I suppose there are some who have not told us how angry they are with my husband for looking at child pornography or with me for staying with him but there's a blessing in the fact that they have not burdened us with their anger. We are grateful for that.

We are grateful that the discovery of my husband's offense has made it possible for him to get help. As I have said before, there is no way for someone to ask for help to break a child porn habit without being turned in to law enforcement. My husband grabbed the opportunity given him and he has worked hard to become a better person.

We are grateful that our children have level heads and good friends.

Merry Christmas to all my readers. May your holidays be marked with blessings big and small. The small ones do add up.

needed: moral courage in legislators

I saw one of our state senators the other day. Didn't talk to him but thought about him pushing for our state to do what it needs to do to become fully compliant with the Adam Walsh Act. He's one of those who votes for the sex offender registry, thinking of it as "tough on crime." I know him; he's a nice guy. Before my husband got in trouble, I don't think I gave any thought to how this state senator felt about sex offenders.

I want to ask him what it is about my husband that frightens him so much. My husband looked at some mild child pornography, that's true, but I want the senator to tell me why he is so sure that my husband is dangerous. He must be sure or he wouldn't have voted the way he did, to treat all sex offenders that way. His vote helped decide how my husband would be treated.

There is absolutely no evidence that my husband is a danger to anyone. Not to adults, not to children. He has never touched children inappropriately and there is no evidence that he ever would. None. His counselors agree. And yet, the legislature has decided--though they knew and still know nothing about my husband--to treat him as if he is dangerous. Because there is no evidence that he's dangerous, they are merely pretending that he is. How else to describe what they are doing?

They, along with Congressmen and Senators, have decided to pretend all sex offenders are equally dangerous. Sex offenders have to register so that the curious public can identify them. My husband has to let law enforcement search him--his residence, his car, his computer, his papers--whenever they want to do that, with no warrant. That also means that law enforcement can search my residence and belongings anytime they want to. I haven't even looked at child porn and I get treated as if I had been convicted too.

Knowing one thing about my husband--he looked at child porn--is not enough to know my husband; it is, however, enough to send him to prison for years. The prosecutor knows as well as I do that my husband is not dangerous or he would have charged him with something else.

Hypothetical: A man commits armed robbery; he didn't fire his weapon and no one was injured. At the trial, the prosecution brings forth witnesses that talk about how awful it was when they were caught in the middle of a different armed robbery where people were shot and killed by the robbers. This, of course, has nothing to do with the armed robbery our man did, and this kind of witness would not be allowed. It makes no sense to convict someone for something he might have done--had he been a different person, in a different place, at a different time.

Yet this is the way sex offenders are treated. They are punished because someone else victimized children, and maybe not even the children in the images pertinent to the case before the court. My husband's  pre-sentence report included a "victim impact statement," even though no victims were identified. The victim impact statement talks about how victims of child pornography feel victimized all over again when someone views the images of them.

No one knows if the teens in the videos found on my husband's computer feel victimized or not. We know nothing about the teens in the videos. We don't know if they hated making the videos or not. We know nothing about them.

We can make guesses about the circumstances of these teens but since when do we use guesses when convicting people of crimes? What we know for absolute certain, though, is that my husband never touched these kids. If there were any doubt about that, the prosecution would have been certain to use that information.

So, Congressmen and Senators, how do you justify sending my husband away for four years because he looked at child pornography? Is it because you are just so sure looking at those images is wrong? Of course it's wrong! I haven't found anyone who argues otherwise and that includes my husband. There are legal adult pornography images that are just as wrong, just as immoral to look at.

Oh, I can feel some readers, itching to shout at me, "Supply and demand!" There is an argument that eliminating the demand for child porn will eliminate the supply, decreasing the incidence of child abuse. Has that happened yet? The numbers of people incarcerated for looking at child porn has grown immensely over the last twenty years. Has that diminished the supply of child porn? The answer is clear: Cutting down on the demand has not affected the supply of child porn images, not even a little. To continue to act as if it does is foolish. And cruel.

Pretending that putting my husband in prison will help--in any way--the children who were abused for the sake of making child pornography, is a cruel delusion. It doesn't help. If it did, we'd have seen results by now. Facts should count.

The truth is that it is easy for legislators to increase the punishment for sex offenders because there are so few who will defend the offenders. That doesn't make it right and using such shallow reasons to increase the punishment is immoral, just as looking at child porn is immoral.

We need legislators with the courage to confront facts and the courage to act on those facts.

Updated December 18: Changed "victim statement" to "victim impact statement." I'm sure my posts reveal pretty clearly that I write in a hurry. This post bugs me a bit because, while I am thinking mostly about child porn offenders, my references to "sex offenders" are vague. Instead of rewriting, I'm trusting that you can sort it out. It is true that sex offenders are treated as if they are all the same. And it is true that removing the judge's ability to use his or her own discretion when sentencing leaves all the power with the prosecutor.

all child porn images are not the same

An old article illustrates a problem with the definition of child pornography.

At Susquenita High School, 15 miles outside of Harrisburg, Pa., eight students, ranging in age from 13 to 17, have learned a tough lesson about "sexting." 

"Take a photograph of yourself or somebody else nude and send it to somebody else, you've committed the crime," said Perry County District Attorney Charles Chenot, who has prosecuted two sexting cases involving a total of 10 minors in the past year. 

Chenot said he considers sexting a form of child pornography and wants kids to understand once those images are in someone else's hands they could wind up anywhere, even the Internet, possibly forever. 

The teens at Susquenita High, who all knew each other, were accused last fall of using their cell phones to take, send, or receive nude photos of each other and in one case a short video of a oral sex. That resulted in a felony pornography charge for each minor.

Child pornography horrifies people because it is seen as victimizing children. The videos of adults abusing children are definitely horrifying but much of child porn is not that. Sexting videos of kids that are loosed on the internet are also considered child pornography. These are images created by kids, probably for kids, and uploaded by kids who are not thinking that the images could go much further than they intend. These eight kids were not victimized by the images; they were victimized by the justice system and by a prosecutor who wanted to teach them a lesson.

In this case, the school discovered the images by examining a phone and turning it over to law enforcement. The District Attorney "wants kids to understand" that the images could wind up living forever on the Internet. He's right, of course, but he charged those eight kids with felonies. That's a heck of a lesson. Sure, juvenile offenses can be expunged from their records but those eight will forever know that the rest of the town knows something incredibly personal about them, something they never intended the community at large to know. School officials and law enforcement teamed up to make sure that people heard about it...all for the good of the children, naturally.

Teens, for better or worse, make their own decisions about sex and sexual behavior and cell phones make it possible to record all of their follies. Should teens be charged with child porn felonies for being stupid and for not realizing that the videos and photos will live forever on the Internet?

"Why should we criminalize a kid for taking and possessing a photo of herself," said Marsha Levick, legal director of the non-profit Juvenile Law Center. "There is no problem that needs to be solved."

The felonies and public humiliation almost certainly do more lasting damage to the kids than the photos themselves ever could do.

Images like this cannot be seen in the same light as images of children sexually abused. They simply are not the same.

If we can agree that sexting images are different from images of child sexual abuse, what is it that makes them different? Both are images of children, both are sexual images. The sexting image is not a recording of a crime. That's the difference. One is an image of foolish kids doing something for fun and one is an image of horrifying cruelty. One is worse than the other. The law, however, treats them the same.

Either image will land a man in prison.

Child pornography includes images made in fun, like these, and those made in cruel circumstances. They include images that a child may have been forced to make and images a child may have chosen to make in order to make money.

It is wrong to treat them as if they all come from equally horrifying circumstances.

what happens when police are militarized?

In Maryland, this:

Terry Allen Porter’s home was raided using all the power of the state security apparatus not because he was terrorist, a bank robber, serial killer, or a relative of the Kennedy clan, but because of an anonymous tip that he was an avid outdoorsman...

An anonymous tip. Hmm. 

Terry Allen Porter required the attention of Maryland State Police, Washington County Sheriff’s Office deputies, a helicopter, K-9 units, a heavily armed FBI SWAT team, and two armored vehicles because he had guns and a twenty-year-old conviction for dealing cocaine that landing him in jail for six months in 1992. 

Three different law enforcement agencies to raid someone with a single non-violent crime in his history. Hmm.

How his home came to be raided should be of great concern to every American. All media accounts suggest that he was informed on by a fellow citizen who apparently had few facts correct (no “machine gun-style firearms,” handguns, or large caches of ammunition were recovered) and a police officer who felt not liking how the election turned out, having security cameras, and being a “prepper” constituted a threat that needed to be responded to with a combined-arms raid of infantry, armor, and air power.

Imagine your neighborhood during a raid such as this. When law enforcement comes in with multiple agencies, with officers armed to the teeth, with helicopter overhead, accidents are just waiting to happen. 

As an American, I am appalled that an informant (who rather frankly appears to have been a liar) and scant evidence brought forth by an undercover cop who saw no actual criminal activity were enough to launch a massive paramilitary raid against a citizen without a history of violence.

And, incidentally, a citizen who wasn't home at the time. Yes. All the combined investigative powers of the Maryland state police, the county sheriff and the FBI led up to a raid when the suspect wasn't even home. Lucky for him.

always more to the story

A man is charged with distribution and possession of child porn. All I know is what is in the article but a couple of things jumped out at me.

School administrators expressed shock earlier this month when discussing the case during a news conference, saying Merrill had never displayed troubling behavior during his time at the school.

I hope school administrators can remember this about their colleague: he had never displayed troubling behavior. 

While being questioned by investigators, Merrill said he was sexually assaulted as a minor and "wanted to know if child pornography was as repulsive as he had read about," according to the affidavit.

I have been told that child porn is the "crack cocaine of the porn world." If this man's story is true, I'd say the adage could be, as well. We all know someone who is "addicted" to Facebook or to video games. It follows that an addiction to child porn is a possible result of simple curiosity. Especially for someone who was sexually assaulted, perhaps.

O'Neil said — with the federal charge filed — he expects Isabella County prosecutors to drop the local child porn distribution charges against Merrill. 

"I still have not seen any evidence of distribution or sharing," O'Neil said. "Right now, all the evidence is reviewing this child pornography in the four corners of his home and office, which is serious enough."

So, no evidence that he distributed child porn and yet he is charged with distribution. Favorite trick of prosecutors: Charge him with everything possible, even if they have no evidence for some of the charge. This pins the defendant between the very long mandatory minimum sentence likely after a trial and the merely long sentence offered in the plea agreement.

let the debate rage on

With judges dissatisfied with the current U.S. Sentencing Commission guidelines, there is much debate about sentencing for child porn offenses.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.

This sounds encouraging. If it is recognized that looking at child porn can be punished with sentences more severe than those given to people who actually sexually abuse children, then the conversation has begun. It simply is not logical that looking can draw a longer sentence than doing.

On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency. At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."

"They need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice," the victim said. "I don't believe that short periods of imprisonment will accomplish these things."

I have said it before and I will say it again: To experience sexual abuse as a child and to know that images of that abuse are still floating around the Internet must be excruciating. As in every painful circumstance we encounter, each victim deals with the abuse in his or her own way, so there must be as many reactions and coping methods as there are victims. The feelings of these people must be intense, no matter how they choose to deal with those feelings. 

Do we sentence defendants based on the intensity of the victim's reaction? One problem with that approach is that in most cases, matching defendant and victim in child porn cases is impossible. Identifying the children in the videos is rare. The children could be anywhere in the world and the abuse could have happened decades ago. Another problem is that ascertaining the intensity of the victim's feelings is subjective. There is no logic in this kind of thinking; it is all emotion.

Thinking that all victims feel the same way about their victimization and about punishment seems presumptuous. To hand down a severe sentence because we assume that the victims will feel better when that happens, is like shooting in the dark. How can we be sure we know the feelings of the children in these particular images?

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.

"The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders." 

Hoffa doubts Congress will be eager to ease the guidelines.
"If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career," she said in a telephone interview. "It's a political radioactive hot potato."

And there lies the problem. Sex offenders, no matter what their offense, are easy to ignore and easy to treat badly because almost no one wants to stand up for them. No one wants to be seen as sympathetic to the sex offender, today's pariah. Elected officials have the added difficulty of wanting to win the next election, making it "impossible" to speak out in favor of more lenient sentences.  

We need to push them to do the right thing, even when it makes re-election difficult.

20 years or a life sentence for possession of child porn

In November 2011, a Florida judge sentenced a man to life in prison for possession of 454 child pornography images.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

I need to do more research on this but I wonder if contact offenses get shorter sentences because they are less frequently prosecuted at the federal level. Tracking down people who download child porn is easy to do for the feds; tracking down individuals who sexually abuse children is probably more often investigated at the local level. 

Mr. Hollander said Mr. Vilca had consistently said he did not know the images were on his computer. He refused a plea bargain of 20 years in prison, after which the state attorney increased the charges. The sentence will be appealed, Mr. Hollander said.

Notice this: The prosecutor was willing to let this guy off "easy" with a 20-year sentence but when the defendant chose to go to trial, the prosecutor increased the charges. Why? Because he could? If 20 years was going to be enough to keep the world safe from this young man, why the extra charges that would increase his sentence? If the prosecutor really believes that the life sentence is appropriate in this case, why did he offer a 20-year plea agreement to begin with? 

I don't know how prosecutors and judges like this can sleep at night.

Troy K. Stabenow, an assistant federal public defender in Missouri’s Western District, noted that most people assume that someone who looks at child pornography is also a child molester or will become a child molester, a view often mirrored by judges. 

But a growing body of scientific research shows that this is not the case, he said. Many passive viewers of child pornography never molest children, and not all child molesters have a penchant for pornography. 

“I’m not suggesting that someone who looks at child pornography should just walk,” he said. “But we ought to punish people for what they do, not for our fear.” [My emphasis.]