Another notable sentencing opinion in a child porn downloading case
I mentioned in this recent post that I have noticed an extraordinary amount of variation in charging, bargaining and sentencing realities in child porn downloading cases. And today I received a copy of a recent sentencing opinion in such a case that provides another example of the challenges these cases present.
The opinion in US v. Ontiveros, No. 07-CR-333 (E.D. Wisc. July 24, 2008) (available for download below), which explains the court’s reasons for giving a sentence of five years’ imprisonment rather than a much higher sentence recommended by guidelines, has lots of notable passages. I found especially interesting the discussion of the defendant’s offense behavior:
Ontiveros, like many who have accessed child pornography via their computer, seems not to have initially appreciated the magnitude of the offense he was committing or the risk that he would be caught. The manner in which computer technology and high speed internet access have made such material readily available in the presumed privacy of the home has removed several substantial impediments to seeking out such material that previously existed. No longer must a person travel to the seedy side of town, walk into a dirty book store, make a request for the sordid material to another person from whom one’s identity could not be readily concealed, and pay for it. The easy availability of the material at no cost with the click of a mouse, while at the same time preserving one’s anonymity, leaves little but one’s natural aversion to depictions of the abuse and degradation of children to stand in the way of obtaining it. And as the popular culture has become more and more saturated with a debased concept of human sexuality, this natural aversion in many people seems to have grown weaker.
A further factor seems to be the lack of appreciation of the harm that simply viewing such material does to children. In some respects, the internet seems analogous to a huge file cabinet containing an almost limitless number of documents and other forms of information. Under this view, accessing child pornography can be rationalized as simply pulling out a drawer and simply looking at photo that someone else took in the past. As long as the individual who accesses the pornography is not himself abusing children to produce it, selling it in order to profit from it, or paying for it so as to stimulate demand for it, he can tell himself that he has done no harm to the children depicted. This line of reasoning, of course, is directly contrary to Congress’ finding, noted above, that “[e]very instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.” Pub. L. 109-248, Title V, § 501, July 27, 2006, 120 Stat. 623. And it also ignores the fact that further demand for such material is fueled by those who seek it out and share it with others. But these harms are indirect and abstract, and thus often unappreciated or easily ignored. This is apparently why people who express shock at the idea that they would ever intentionally harm a child can engage in such behavior.
While these changes in technology and the culture, and the lack of appreciation of the harm done to children do not excuse the behavior, they do suggest an explanation for why people such as Ontiveros with no previous history of criminal or abusive conduct seem to be committing such crimes with increasing frequency. They also suggest that with the realization that such conduct is not anonymous, that it carries substantial penalties, and that even simply viewing it does substantial harm to children, first-time offenders such as Ontiveros are unlikely to repeat. Treatment directed to increasing such awareness can be provided within the sentence structure I have ordered.
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