BoyWiki - User contributions [en]

Probative value, and countervailing adverse effects, of evidence

2020-11-18T23:39:35Z

Lysander:

'''Probative value, and countervailing adverse effects, of evidence''' are a concern in some trials.

Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."<ref>https://www.law.cornell.edu/rules/fre/rule_403</ref>

This can become an issue during some [[child pornography]] cases.<ref>https://nccriminallaw.sog.unc.edu/applying-rule-403-in-child-pornography-cases/</ref> In any case in which Rule 403 is invoked, it is appropriate for a trial lawyer to ask the judge to provide a statement on the record that explicates the court's analysis of probative value and the countervailing adverse effect.<ref>https://books.google.com/books?id=X8_ED1zKwJUC&pg=PT161</ref>

Some defendants seek to stipulate to certain facts, in order to avoid the need for evidence of those facts to be presented to the jury. This is sometimes not allowed if it would rob the evidence of its fair and legitimate weight, or upset jurors' expectations, leading them to wonder what they are being kept from knowing.<ref>http://www.ca5.uscourts.gov/opinions/unpub/19/19-40009.0.pdf</ref>

==References==
{{reflist}}

==External link==
*https://www.nhd.uscourts.gov/sites/default/files/opinions/13/13NH143P.pdf

[[Category:Law]]

Receipt of child pornography

2020-11-16T23:22:46Z

Lysander:

'''Receipt of child pornography''' is an offense that involves knowingly receiving [[child pornography]]. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. [[Production of child pornography|Production]] is another means. The courts have found that [[possession of child pornography]] does not by itself prove receipt.<ref>https://www.courtlistener.com/opinion/1457579/united-states-v-miller/</ref> Possession is a lesser-included offense of receipt.<ref>https://www.courtlistener.com/opinion/216583/united-states-v-ehle/</ref>

Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses,<ref>https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1924&context=student_scholarship</ref> the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty. In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).<ref>https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190102_Sex-Offense-Mand-Min.pdf</ref>

==Burden of proof==
The government has the burden of showing how the CP was received.<ref>https://alanellis.com/wp-content/uploads/2015/03/Trends-Representing-Child-Pornography-Offenders.pdf</ref><ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/02/14/usab5202.pdf</ref>

At the federal level, a connection to [[interstate commerce]] must be proved.<ref>https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf</ref> Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography.<ref>https://www.leagle.com/decision/infco20110207104</ref> The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."<ref>https://www.leagle.com/decision/infco20120717137</ref>

==History==
The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. [[Reverse sting]] operations like “[[Operation Looking Glass]]” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

In 2003, the [[PROTECT Act]] established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf</ref><ref>https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/sentencing_resources/deconstructing_the_guidelines/sample-sentencing-memo-in-child-pornography-case.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-11-16T23:20:13Z

Lysander:

'''Receipt of child pornography''' is an offense that involves knowingly receiving [[child pornography]]. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. [[Production of child pornography|Production]] is another means. The courts have found that [[possession of child pornography]] does not by itself prove receipt.<ref>https://www.courtlistener.com/opinion/1457579/united-states-v-miller/</ref> Possession is a lesser-included offense of receipt.<ref>https://www.courtlistener.com/opinion/216583/united-states-v-ehle/</ref>

Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses,<ref>https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1924&context=student_scholarship</ref> the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty. In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).<ref>https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190102_Sex-Offense-Mand-Min.pdf</ref>

==Burden of proof==
The government has the burden of showing how the CP was received.<ref>https://alanellis.com/wp-content/uploads/2015/03/Trends-Representing-Child-Pornography-Offenders.pdf</ref><ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/02/14/usab5202.pdf</ref>

At the federal level, a connection to [[interstate commerce]] must be proved.<ref>https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf</ref> Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography.<ref>https://www.leagle.com/decision/infco20110207104</ref> The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."<ref>https://www.leagle.com/decision/infco20120717137</ref>

==History==
The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. [[Reverse sting]] operations like “[[Operation Looking Glass]]” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

In 2003, the [[PROTECT Act]] established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-11-16T23:14:03Z

Lysander:

'''Receipt of child pornography''' is an offense that involves knowingly receiving [[child pornography]]. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. [[Production of child pornography|Production]] is another means. The courts have found that [[possession of child pornography]] does not by itself prove receipt.<ref>https://www.courtlistener.com/opinion/1457579/united-states-v-miller/</ref> Possession is a lesser-included offense of receipt.<ref>https://www.courtlistener.com/opinion/216583/united-states-v-ehle/</ref>

Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty. In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).<ref>https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190102_Sex-Offense-Mand-Min.pdf</ref>

==Burden of proof==
The government has the burden of showing how the CP was received.<ref>https://alanellis.com/wp-content/uploads/2015/03/Trends-Representing-Child-Pornography-Offenders.pdf</ref><ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/02/14/usab5202.pdf</ref>

At the federal level, a connection to [[interstate commerce]] must be proved.<ref>https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf</ref> Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography.<ref>https://www.leagle.com/decision/infco20110207104</ref> The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."<ref>https://www.leagle.com/decision/infco20120717137</ref>

==History==
The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. [[Reverse sting]] operations like “[[Operation Looking Glass]]” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

In 2003, the [[PROTECT Act]] established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-11-16T23:02:51Z

Lysander:

'''Receipt of child pornography''' is an offense that involves knowingly receiving [[child pornography]]. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. [[Production of child pornography|Production]] is another means. The courts have found that [[possession of child pornography]] does not by itself prove receipt.<ref>https://www.courtlistener.com/opinion/1457579/united-states-v-miller/</ref>

Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty. In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).<ref>https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190102_Sex-Offense-Mand-Min.pdf</ref>

==Burden of proof==
The government has the burden of showing how the CP was received.<ref>https://alanellis.com/wp-content/uploads/2015/03/Trends-Representing-Child-Pornography-Offenders.pdf</ref><ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/02/14/usab5202.pdf</ref>

At the federal level, a connection to [[interstate commerce]] must be proved.<ref>https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf</ref> Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography.<ref>https://www.leagle.com/decision/infco20110207104</ref> The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."<ref>https://www.leagle.com/decision/infco20120717137</ref>

==History==
The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. [[Reverse sting]] operations like “[[Operation Looking Glass]]” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

In 2003, the [[PROTECT Act]] established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-11-16T22:55:54Z

Lysander: /* History */

'''Receipt of child pornography''' is an offense that involves knowingly receiving [[child pornography]]. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one's hand, or into one's possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party."

Receipt is not the only means by which one could obtain child pornography. [[Production of child pornography|Production]] is another means. The courts have found that [[possession of child pornography]] does not by itself prove receipt.<ref>https://www.courtlistener.com/opinion/1457579/united-states-v-miller/</ref>

==Burden of proof==
The government has the burden of showing how the CP was received.<ref>https://alanellis.com/wp-content/uploads/2015/03/Trends-Representing-Child-Pornography-Offenders.pdf</ref><ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/02/14/usab5202.pdf</ref>

At the federal level, a connection to [[interstate commerce]] must be proved.<ref>https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf</ref> Also, the defendant must have known, not just that he was receiving something, but that what he was receiving was child pornography.<ref>https://www.leagle.com/decision/infco20110207104</ref> The defendant's knowledge is established for purposes of § 2252(a) if "he is aware that his receipt of the illegal images is practically certain to follow from his conduct."<ref>https://www.leagle.com/decision/infco20120717137</ref>

==History==
The original version of 18 U.S.C. § 2252(a)(2) punished “[a]ny person who. . . knowingly receive[d] for the purpose of sale or distribution for sale, or knowingly s[old] or distribute[d] for sale, any” child pornography. Then Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.

To effectuate the intended change in § 2252’s scope, Congress made two simple changes to the language found in § 2252(a)(2). First, Congress eliminated the requirement that “receiving” child pornography be “for the purpose of sale or distribution for sale” from the statute altogether. Congress also struck the language requiring “distribution” to be“for sale.” The resulting § 2252(a)(2) simply punishes “[a]ny person who . . . knowingly receives, or distributes” child pornography.

This created an entirely new class of offenders that received and subsequently possessed child pornography for personal use. [[Reverse sting]] operations like “[[Operation Looking Glass]]” were able to garner sufficient evidence of “receipt.” But those caught simply in “possession” of child pornography, with no evidence of “receipt,” could avoid a conviction under § 2252(a)(2) simply because law enforcement intervened at a later time.

Congress would eventually rectify this by criminalizing “possession.” However, that did not ultimately resolve the problem of inconsistently punishing receivers and possessors.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

In 2003, the [[PROTECT Act]] established a minimum penalty for receipt of five years. Specifically, a person who “knowingly receives or distributes” any child pornography faces a minimum penalty of five years and a maximum penalty of twenty years. If that violator has a prior conviction for a sex offense involving a minor, the penalty range increases to a fifteen-year minimum and a forty-year maximum.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

The legislative history concerning Congress’s decision to punish possession less severely than the closely related offense of receipt is sparse. No legislative findings, committee reports, or relevant floor statements by sponsors clearly reflect Congress’s reasons for the different penalties for receipt and possession in either the 1990 legislation initially criminalizing possession (as a separate act from receipt) or the PROTECT Act of 2003 (which added a mandatory minimum for receipt and distribution but not possession). The history of related legislation issuing a directive to the Commission concerning guideline penalties for receipt and possession, however, offers some insight into Congress’s intent for punishing receipt more severely (i.e., on par with distribution) than simple possession.<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Child erotica

2020-07-01T07:26:38Z

Lysander:

'''Child erotica''' is sexually stimulating content pertaining to children that is not [[child pornography]]. Courts will sometimes use the presence of child erotica as proof of a defendant's sexual interest in children.<ref>https://www.govinfo.gov/content/pkg/USCOURTS-ca6-14-06153/pdf/USCOURTS-ca6-14-06153-0.pdf</ref>

Some [[search warrant]]s have called for searching for, and seizing, child erotica.<ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/12/18/usab5407.pdf</ref> In ''U.S. v. Edwards'', the 10th circuit noted that the fact that people who possess child pornography often also possess child erotica does not mean that the reverse is true, i.e. that those who possess child erotica are likely to possess child pornography. The court, citing ''Jacobson'',<ref>https://supreme.justia.com/cases/federal/us/503/540/</ref> noted that those who disagree with a law tend to obey it anyway.<ref>https://law.justia.com/cases/federal/appellate-courts/ca10/14-5083/14-5083-2015-12-29.html</ref>

Child erotica is also legally significant in that some supervised release conditions may ban the defendant from possessing it. For example, a condition might read, "The defendant shall not purchase, sell, view, or possess images, in any form of media or live venue that depict pornography, sexually explicit conduct, child erotica, or child nudity. The defendant shall not patronize any place where such material or entertainment is available."

==See also==
*[[Probative value, and countervailing adverse effects, of evidence]]

==References==
{{reflist}}

[[Category:Law]]

Child erotica

2020-06-28T22:41:38Z

Lysander:

'''Child erotica''' is sexually stimulating content pertaining to children that is not [[child pornography]]. Courts will sometimes use the presence of child erotica as proof of a defendant's sexual interest in children.<ref>https://www.govinfo.gov/content/pkg/USCOURTS-ca6-14-06153/pdf/USCOURTS-ca6-14-06153-0.pdf</ref>

Some [[search warrant]]s have called for searching for, and seizing, child erotica.<ref>https://www.justice.gov/sites/default/files/usao/legacy/2006/12/18/usab5407.pdf</ref> In ''U.S. v. Edwards'', the 10th circuit noted that the fact that people who possess child pornography often also possess child erotica does not mean that the reverse is true, i.e. that those who possess child erotica are likely to possess child pornography. The court, citing ''Jacobson'',<ref>https://supreme.justia.com/cases/federal/us/503/540/</ref> noted that those who disagree with a law tend to obey it anyway.<ref>https://law.justia.com/cases/federal/appellate-courts/ca10/14-5083/14-5083-2015-12-29.html</ref>

==See also==
*[[Probative value, and countervailing adverse effects, of evidence]]

==References==
{{reflist}}

[[Category:Law]]

Child erotica

2020-06-28T19:59:54Z

Lysander:

Child erotica

2020-06-28T18:29:53Z

Lysander: Created page with "'''Child erotica''' is sexually stimulating content pertaining to children that is not child pornography. Courts will sometimes use the presence of child erotica as proof..."

Probative value, and countervailing adverse effects, of evidence

2020-06-28T18:22:34Z

Lysander:

Rules of evidence

2020-06-28T18:22:05Z

Lysander: Lysander moved page Rules of evidence to Probative value, and countervailing adverse effects, of evidence

#REDIRECT [[Probative value, and countervailing adverse effects, of evidence]]

Probative value, and countervailing adverse effects, of evidence

2020-06-28T18:22:05Z

Lysander: Lysander moved page Rules of evidence to Probative value, and countervailing adverse effects, of evidence

'''Probative value, and countervailing adverse effects, of evidence''' are a concern in some trials.

Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."<ref>https://www.law.cornell.edu/rules/fre/rule_403</ref>

This can become an issue during some [[child pornography]] cases.<ref>https://nccriminallaw.sog.unc.edu/applying-rule-403-in-child-pornography-cases/</ref> In any case in which Rule 403 is invoked, it is appropriate for a trial lawyer to ask the judge to provide a statement on the record that explicates the court's analysis of probative value and the countervailing adverse effect.

Some defendants seek to stipulate to certain facts, in order to avoid the need for evidence of those facts to be presented to the jury. This is sometimes not allowed if it would rob the evidence of its fair and legitimate weight, or upset jurors' expectations, leading them to wonder what they are being kept from knowing.<ref>http://www.ca5.uscourts.gov/opinions/unpub/19/19-40009.0.pdf</ref>

==References==
{{reflist}}

[[Category:Law]]

Probative value, and countervailing adverse effects, of evidence

2020-06-28T18:21:49Z

Lysander:

'''Probative value, and countervailing adverse effects, of evidence''' are a concern in some trials.

Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."<ref>https://www.law.cornell.edu/rules/fre/rule_403</ref>

This can become an issue during some [[child pornography]] cases.<ref>https://nccriminallaw.sog.unc.edu/applying-rule-403-in-child-pornography-cases/</ref> In any case in which Rule 403 is invoked, it is appropriate for a trial lawyer to ask the judge to provide a statement on the record that explicates the court's analysis of probative value and the countervailing adverse effect.

Some defendants seek to stipulate to certain facts, in order to avoid the need for evidence of those facts to be presented to the jury. This is sometimes not allowed if it would rob the evidence of its fair and legitimate weight, or upset jurors' expectations, leading them to wonder what they are being kept from knowing.<ref>http://www.ca5.uscourts.gov/opinions/unpub/19/19-40009.0.pdf</ref>

==References==
{{reflist}}

[[Category:Law]]

Probative value, and countervailing adverse effects, of evidence

2020-06-28T18:19:43Z

Lysander:

In law, the '''rules of evidence''' determine what evidence is admissible.

==Probative value of evidence, as balanced against other concerns==
Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."<ref>https://www.law.cornell.edu/rules/fre/rule_403</ref>

This can become an issue during some [[child pornography]] cases.<ref>https://nccriminallaw.sog.unc.edu/applying-rule-403-in-child-pornography-cases/</ref>

Some defendants seek to stipulate to certain facts, in order to avoid the need for evidence of those facts to be presented to the jury. This is sometimes not allowed if it would rob the evidence of its fair and legitimate weight, or upset jurors' expectations, leading them to wonder what they are being kept from knowing.<ref>http://www.ca5.uscourts.gov/opinions/unpub/19/19-40009.0.pdf</ref>

==References==
{{reflist}}

[[Category:Law]]

Bench trial

2020-06-28T01:07:35Z

Lysander:

A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving [[child pornography]] or other sex crimes opt for a bench trial, when a bona fide defense exists and their hope is that a judge will put aside his biases and follow the rules better than a jury would.<ref>https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/criminal-defense-case/what-the-bench-trial-process</ref><ref>https://www.greghillassociates.com/should-i-waive-a-jury-trial-and-instead-have-a-bench-trial.html</ref> A judge may, for example, have a better understanding of the presumption of innocence and the burden of proof beyond a reasonable doubt. In cases involving complex facts or legal subtleties, a bench trial may be preferred by the defendant. A bench trial will often be less time-consuming, less complex, and more informal than a jury trial.<ref>https://brettpodolsky.com/jury/jury-vs-bench-trials-the-advantages-and-disadvantages-of-both</ref>

The American Bar Association advises, "A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view" and "The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case."<ref>https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/bench-trial-tips/</ref>

In the United States, bench trials are allowed with the consent of both the defendant and the government,<ref>https://www.law.cornell.edu/rules/frcrmp/rule_23</ref> but there is no recognized right of the defendant to a bench trial,<ref>https://www.jurist.org/commentary/2016/06/tim-lynch-trial-judge/</ref> unless he can show that it would be impossible to select a fair and impartial jury.<ref>https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4637&context=flr</ref>

==References==
{{reflist}}

[[Category:Law]]

Bench trial

2020-06-28T01:03:31Z

Lysander:

A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving [[child pornography]] or other sex crimes opt for a bench trial, when a bona fide defense exists and their hope is that a judge will put aside his biases and follow the rules better than a jury would.<ref>https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/criminal-defense-case/what-the-bench-trial-process</ref><ref>https://www.greghillassociates.com/should-i-waive-a-jury-trial-and-instead-have-a-bench-trial.html</ref> A judge may, for example, have a better understanding of the presumption of innocence and the burden of proof beyond a reasonable doubt. In cases involving complex facts or legal subtleties, a bench trial may be preferred by the defendant. A bench trial will often be less time-consuming, less complex, and more informal than a jury trial.<ref>https://brettpodolsky.com/jury/jury-vs-bench-trials-the-advantages-and-disadvantages-of-both</ref>

The American Bar Association advises, "A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view" and "The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case."<ref>https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/bench-trial-tips/</ref>

In the United States, bench trials are allowed with the consent of both the defendant and the government,<ref>https://www.law.cornell.edu/rules/frcrmp/rule_23</ref> but there is no recognized right of the defendant to a bench trial.<ref>https://www.jurist.org/commentary/2016/06/tim-lynch-trial-judge/</ref>

==References==
{{reflist}}

[[Category:Law]]

Bench trial

2020-06-28T01:02:46Z

Lysander:

A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving [[child pornography]] or other sex crimes opt for a bench trial, when a bona fide defense exists and their hope is that a judge will put aside his biases and follow the rules better than a jury would.<ref>https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/criminal-defense-case/what-the-bench-trial-process</ref><ref>https://www.greghillassociates.com/should-i-waive-a-jury-trial-and-instead-have-a-bench-trial.html</ref> A judge may, for example, have a better understanding of the presumption of innocence and the burden of proof beyond a reasonable doubt. In cases involving complex facts or legal subtleties, a bench trial may be preferred by the defendant. A bench trial will often be less time-consuming, less complex, and more informal than a jury trial.<ref>https://brettpodolsky.com/jury/jury-vs-bench-trials-the-advantages-and-disadvantages-of-both</ref>

The American Bar Association advises, "A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view" and "The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case."<ref>https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/bench-trial-tips/</ref>

In the United States, bench trials are allowed with the consent of both parties, but there is no recognized right of the defendant to a bench trial.<ref>https://www.jurist.org/commentary/2016/06/tim-lynch-trial-judge/</ref>

==References==
{{reflist}}

[[Category:Law]]

Bench trial

2020-06-28T00:52:53Z

Lysander:

Bench trial

2020-06-28T00:47:51Z

Lysander:

Bench trial

2020-06-28T00:46:12Z

Lysander:

A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving [[child pornography]] or other sex crimes opt for a bench trial, when their hope is that a judge will follow the rules better than a jury would.<ref>https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/criminal-defense-case/what-the-bench-trial-process</ref>

The American Bar Association advises, "A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view" and "The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case."<ref>https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/bench-trial-tips/</ref>

==References==
{{reflist}}

[[Category:Law]]

Bench trial

2020-06-28T00:44:11Z

Lysander: Created page with "A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving child pornography or other sex crimes opt for a bench trial. The American Bar..."

A '''bench trial''' is a trial by judge instead of jury. Many defendants in cases involving [[child pornography]] or other sex crimes opt for a bench trial.

The American Bar Association advises, "A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view" and "The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case."<ref>https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/bench-trial-tips/</ref>

==References==
{{reflist}}

[[Category:Law]]

Probative value, and countervailing adverse effects, of evidence

2020-06-27T22:59:27Z

Lysander: Created page with "In law, the '''rules of evidence''' determine what evidence is admissible. For example, Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its pr..."

In law, the '''rules of evidence''' determine what evidence is admissible. For example, Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."<ref>https://www.law.cornell.edu/rules/fre/rule_403</ref>

This can become an issue during some [[child pornography]] cases.<ref>https://nccriminallaw.sog.unc.edu/applying-rule-403-in-child-pornography-cases/</ref>

==References==
{{reflist}}

[[Category:Law]]

Child pornography possession

2020-06-27T20:49:15Z

Lysander: Redirected page to Possession of child pornography

#redirect [[possession of child pornography]]

Cached child pornography

2020-06-27T20:48:58Z

Lysander:

'''Cached child pornography''' is [[child pornography]] that is stored in a web cache. In the ''Romm'' case, the defendant admitted to having downloaded child porn and deleted it five minutes later. Investigators were able to use forensic tools to recover 40 images deleted from his internet cache and two images deleted from another part of his hard drive, and the 9th Circuit upheld his conviction:<ref>https://scholar.google.com/scholar_case?case=70312934064490790</ref>
{{quotation|Romm exercised control over the cached images while they were contemporaneously saved to his cache and displayed on his screen. At that moment, as the expert testimony here established, Romm could print the images, enlarge them, copy them, or email them to others. No doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a "pop-up," for instance. But that is not the case here.

By his own admission to ICE, Romm repeatedly sought out child pornography over the internet. When he found images he "liked," he would "view them, save them to his computer, look at them for about five minutes [ ] and then delete them." Either while viewing the images or shortly thereafter, Romm twice masturbated. He described his activities as the "saving" and "downloading" of the images. While the images were displayed on screen and simultaneously stored to his cache, Romm could print them, email them, or save them as copies elsewhere. Romm could destroy the copy of the images that his browser stored to his cache. And according to detective Luckie, Romm did just that, either manually, or by instructing his browser to do so. Forensic evidence showed that Romm had enlarged several thumbnail images for better viewing. In short, given the indicia that Romm exercised control over the images in his cache, there was sufficient evidence for the jury to find that Romm committed the act of knowing possession.}}

==References==
{{reflist}}

[[Category:Child pornography]]

Cached child pornography

2020-06-27T20:48:20Z

Lysander: Created page with "'''Cached child pornography''' is child pornography that is stored in a web cache. In the ''Romm'' case, the defendant admitted to having downloaded child porn and deleted..."

'''Cached child pornography''' is [[child pornography]] that is stored in a web cache. In the ''Romm'' case, the defendant admitted to having downloaded child porn and deleted it five minutes later. Investigators were able to use forensic tools to recover 40 images deleted from his internet cache and two images deleted from another part of his hard drive, and the court found:<ref>https://scholar.google.com/scholar_case?case=70312934064490790</ref>
{{quotation|Romm exercised control over the cached images while they were contemporaneously saved to his cache and displayed on his screen. At that moment, as the expert testimony here established, Romm could print the images, enlarge them, copy them, or email them to others. No doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a "pop-up," for instance. But that is not the case here.

By his own admission to ICE, Romm repeatedly sought out child pornography over the internet. When he found images he "liked," he would "view them, save them to his computer, look at them for about five minutes [ ] and then delete them." Either while viewing the images or shortly thereafter, Romm twice masturbated. He described his activities as the "saving" and "downloading" of the images. While the images were displayed on screen and simultaneously stored to his cache, Romm could print them, email them, or save them as copies elsewhere. Romm could destroy the copy of the images that his browser stored to his cache. And according to detective Luckie, Romm did just that, either manually, or by instructing his browser to do so. Forensic evidence showed that Romm had enlarged several thumbnail images for better viewing. In short, given the indicia that Romm exercised control over the images in his cache, there was sufficient evidence for the jury to find that Romm committed the act of knowing possession.}}

==References==
{{reflist}}

[[Category:Child pornography]]

Deleted child pornography

2020-06-27T20:44:52Z

Lysander: Created page with "'''Deleted child pornography''' is child pornography that has been subjected to a computer's deletion process. It may or may not be recoverable using forensic tools or oth..."

'''Deleted child pornography''' is [[child pornography]] that has been subjected to a computer's deletion process. It may or may not be recoverable using forensic tools or other methods.

There are different kinds of deletion. A file can be placed in the recycle bin, from which it can easily be undeleted without forensic tools. Once the recycle bin is emptied, then it goes to unallocated space. Until that space is overwritten with other content, it can still be recovered by forensic tools. However, it is no longer considered to be under the dominion and control of (i.e., possessed by) the person who possesses the hard drive, unless he has access to such tools.

In some cases, thumbnails or other remnants of child pornography may remain on the hard drive. The ''Vosburgh'' case was one example of this.<ref>https://caselaw.findlaw.com/us-3rd-circuit/1522221.html</ref>

Under federal law, if there were only one or two CP images, and a good-faith effort was made to delete them, this can be considered an affirmative defense to a charge of [[child pornography possession]].<ref>https://www.law.cornell.edu/uscode/text/18/2252A</ref>

==See also==
*[[Cached child pornography]]

==References==
{{reflist}}

[[Category:Law]]

United States Sentencing Guidelines

2020-06-25T23:27:13Z

Lysander: /* Sentencing practices */

The '''United States Sentencing Guidelines''' set out recommended penalties for federal child pornography offenses. |Some judges have been departing from the sentencing guidelines; for example, Judge [[Michael A. Ponsor]] sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.<ref>{{cite news|last=Valencia|first=Milton J.|title=US judges balk at rigid child porn sentences|url=http://articles.boston.com/2012-02-12/news/31052706_1_sentencing-guidelines-federal-judges-sentencing-commission|accessdate=27 June 2012|newspaper=Boston Globe|date=12 February 2012}}</ref> One of the main criticisms of the reasonableness of the child pornography guidelines is that the steep enhancements they provide apply in nearly every case and almost always boost the sentencing range to the higher end of the statutory range.<ref>{{cite journal|journal=Criminal Justice Reporter|publisher=BNA|volume=90|number=12|pages=382|date=21 December 2011|title=Presumption of Reasonableness Applies to Sentences within Pornography Guidelines}}</ref>

In a 2010 survey of federal judges by the [[U.S. 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.<ref>{{cite news|url=http://www.foxnews.com/us/2012/04/29/debate-rages-over-severity-child-porn-sentences/#ixzz1z1JmMKjU|title=Debate rages over severity of child-porn sentences|publisher=Associated Press|date=29 April 2012}}</ref> That figure has been steadily increasing since the Supreme Court in 2005 (in ''{{w|United States v. Booker}}'') affirmed that judges have the right to depart from commission recommendations. A concern with this high rate of departures is that it could create "unwarranted disparities" in how similar offenders who commit similar crimes are sentenced, which is anathema to the goals of the {{w|Sentencing Reform Act}}.

==Sentencing practices==
In 2007, 351 out of 1025 defendants sentenced for nonproduction-related offenses received downward departures from the recommended Guideline range. Today, over forty percent of defendants convicted of federal child pornography offenses receive sentences below the Guidelines.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

Because our typical defendant is using a computer, his offense level is increased by two. Because his P2P software is probably making images available to others, his level is increased by another two. Because he probably has an image of a minor under twelve, his level is increased by another two. Because he probably has an image that involves penetration or bondage, his offense level is increased by four. Assuming he has at least two images—a fairly safe assumption—his offense level is increased by another two. In sum, the typical offender probably qualifies for an offense level of thirty. Assuming, as is very likely the case, he has no criminal history, he is looking at a penalty under the Guidelines of approximately nine years.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

==Guidelines==
===Evolution of United States Sentencing Guideline Section 2G2.2===
The guideline governing possession and distribution of child pornography, United States Sentencing Guidelines section 2G2.2, was first promulgated by the Sentencing Commission in 1987. In the past several years, the section has been amended several times, resulting in increasingly lengthy sentences. These strict penalties result from amendments that have increased the number and severity of various sentencing enhancements. The current guideline includes enhancements if any of the following circumstances are established: the material includes prepubescent children or minors under twelve; the material depicts sadistic or masochistic conduct; the defendant has exhibited a "pattern of activity" involving sexual abuse of a minor; or the offense involved the use of a computer. Additional enhancements apply if the defendant distributed the material rather than merely possessing it. Finally, section 2G2.2 allows for escalating enhancements depending on the number of images possessed. Without any enhancement, the mandatory minimum for receipt of child pornography is five years.

In a comprehensive analysis of the history of section 2G2.2, Assistant Federal Public Defender Troy Stabenow examined the guideline's amendment history and determined that the changes resulted from "numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind." Stabenow describes how then-Senator Jesse Helms of North Carolina introduced a "morality earmark" into House Resolution 2622, the Treasury-Postal Service Appropriations Bill of 1991. Two religious organizations, Morality in the Media and the Religious Alliance Against Pornography, had sent letters to Senator Helms urging him to propose upward adjustments to the guidelines for child pornography crimes. Accordingly, the proposed amendment instructed the Sentencing Commission to increase the penalties for child pornography offenders.

The Sentencing Commission lobbied against the upward adjustments. The chair of the Commission wrote a letter to the House of Representatives opposing the proposed amendment and noting that it "would negate the Commission's carefully structured efforts to treat similar conduct similarly and to provide proportionality among different grades of seriousness of these offenses." The amendment was nevertheless added to the House bill and was eventually signed into law. Stabenow notes that this amendment marked the beginning of a series of changes to child pornography guidelines that "would come from Congress [rather than the Sentencing Commission], and would be dictated not by experience and study, but instead by a general moral sense that the penalties for "smut peddlers' should always, and regularly, be made stricter, not weaker." Stabenow then details several more congressionally mandated increases in the child pornography sentencing guidelines that were based on moral sensibilities rather than on scientific studies and empirical research.

The most far-reaching of these amendments arose in 2003 when two officials from the Department of Justice convinced freshman Congressman [[Tom Feeney]] to insert changes to the child pornography guidelines into an unrelated bill. Representative Feeney's amendment adjusted the sentencing guidelines for child pornography in various ways, including creating a five-year mandatory minimum and a potential five-level increase depending on the number of images possessed. Debate on the amendment was limited to twenty minutes, and it was eventually inserted into the Child Abduction Prevention Act. The Feeney Amendment was widely criticized for its failure to consult with the Sentencing Commission and for its lack of empirical support. It was opposed not only by the Sentencing Commission itself, but also by the Chairman of the House Committee on the Judiciary, the Judicial Conference of the United States, and the American Bar Association. Professor Steven Chanenson has summarized some of the concerns as follows:

{{cquote|Congress [for the first time] directly amended the Federal Sentencing Guidelines by drafting Guidelines text. In the past, Congress often had been content to issue directions to and requests for study from the Commission, but left it to the Commission to craft specific Guidelines text. This time, Congress completely ignored the expert role the Sentencing Commission was designed to play, cut the Commission out of the process entirely, and directly wrote Guidelines text to its own specifications.}}

The politicization of child pornography sentencing guidelines has resulted in a flawed and irrational sentencing scheme. For example, Stabenow describes a typical defendant with no criminal history who is convicted of possessing four short video clips and ten pictures. Since most of the enhancements are triggered in the average case, the recommended range for this hypothetical defendant would be 188 to 235 months (roughly fifteen-and-a-half to nineteen-and-a-half years). Stabenow compares this sentence to that of a fifty-year-old man who contacts a twelve-year-old girl over the internet and eventually arranges a meeting with her during which they have repeated sex. The conduct would be a violation of 18 U.S.C. § 2422(b), and the defendant would be sentenced under section 2G1.3. His recommended range would be 108 to 135 months (nine to just over eleven years). Stabenow concludes that this sentencing disparity, between a typical possessor of child pornography and a man who entices a child to have repeated sex with him, underscores the disproportionality of section 2G2.2.

===Table===
{| class="wikitable" style="text-align:left; width:50%"
|-valign="top"
! U.S. Sentencing Guideline
! U.S. Code
|- valign="top"
|{{ussg|2|G|1|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g13}} Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor
|
{{col-begin}}
{{col-break}}
*{{usc|8|1328}} (only if the offense involved a minor)
*{{usc|18|1591}} (only if the offense involved a minor)
*{{usc|18|2421}} (only if the offense involved a minor)
{{col-break}}
*{{usc|18|2422}} (only if the offense involved a minor)
*{{usc|18|2423}}
*{{usc|18|2425}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|1|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g21}} Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production
|
{{col-begin}}
{{col-break}}
*{{usc|18|1591}}
*{{uscsub|18|2251|a}}
*{{uscsub|18|2251|b}}
{{col-break}}
*{{uscsub|18|2251|c}}
*{{uscsub|18|2251|d|1|B}}
*{{uscsub|18|2260|a}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|2|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g22}} Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor
|
*{{usc|18|1466A}}
*{{usc|18|2252}}
*{{uscsub|18|2252A|a}}
*{{uscsub|18|2252A|b}}
*{{uscsub|18|2260|b}}
|-valign="top"
|{{ussg|2|G|2|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g23}} Selling or Buying of Children for Use in the Production of Pornography
|{{usc|18|2251A}}
|-valign="top"
|{{ussg|2|G|2|5|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g25}} Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email
|
*{{uscsub|15|7704|d}}
*{{usc|18|2257}}
*{{usc|18|2257A}}
|-valign="top"
|{{ussg|2|G|2|6|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g26}} Child Exploitation Enterprises
|{{uscsub|18|2252A|g}}
|-
|}

===Supervised release===
The guidelines provide, "If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended."<ref>http://www.ussc.gov/guidelines-manual/2014/2014-chapter-5#5d12</ref>

==References==
{{reflist}}
[[Category:Draft]]

Market thesis

2020-06-25T23:23:57Z

Lysander:

The '''market thesis''' is the notion that child pornography consumers increase the market for child pornography production.

[[Deirdre von Dornum]] writes, "Because child pornography is free, widely available and easy to produce, it is not subject to the normal laws of supply and demand."<ref>https://www.nhregister.com/news/article/Debate-rages-over-severity-of-child-porn-sentences-11503089.php</ref><ref>https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/sentencing_resources/defender_recommendations/written-statement-of-deirdre-d-von-dornum-at-ussc-2012-public-hrg-on-child-pornography-sentencing.pdf</ref> A 2012 [[U.S. Sentencing Commission]] report found, "Critics have contended that recent changes in Internet technology have undercut the ability of the criminal laws to affect the “market.”"<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf</ref>

A Senate report on child pornography observed: “the overwhelming majority of child pornography seized in arrests made in the United States has not been produced or distributed for profit.”<ref>S. Permanent Subcomm. on Investigations of the Comm. on Governmental Affairs, 99th Cong., 2d Sess., Child Pornography and Pedophilia 47 (Oct. 9, 1986).</ref><ref>https://books.google.com/books?id=vOAvAAAAIAAJ&pg=RA59-PA43&lpg=RA59-PA43</ref>

Congress's own actions tend to undercut the market thesis. In 1978, 18 U.S.C. § 2252 became law as part of the [[Protection of Children Against Sexual Exploitation Act of 1977]]. As enacted in 1978, § 2252 was much narrower in scope than it is today because Congress's original intent was to thwart the widespread commercialization of child pornography. The earliest version of § 2252 punished those transporting, shipping, distributing, or receiving child pornography in interstate or foreign commerce for the purpose of sale. However, it soon became apparent that the original legislation was too limited in scope because non-commercial trafficking of child pornography was also pervasive. To rectify this problem, Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

With the proliferation of peer-to-peer (P2P) file-sharing sites, the commercial market for child pornography dramatically contracted. As a result, the typical defendant today has probably been apprehended because of his involvement in a P2P file sharing network or an Internet forum, such as a bulletin board, newsgroup, or chat room.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Possession of child pornography

2020-06-25T23:19:06Z

Lysander:

'''Possession of child pornography''' is an offense whose punishment varies by jurisdiction. The U.S. Supreme Court decision ''[[Osborne v. Ohio]]'' authorized its criminalization.

==History==
In 1990, Congress passed the [[Child Protection Restoration and Penalties Enhancement Act]], making it illegal to knowingly possess child pornography under § 2252(a)(4)(B).<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Theory==
The harms of child pornography possession are said to include [[enabling harms]], [[gateway harms]], [[correlation harms]], [[market-based harms]], [[norm-undermining harms]], and [[perpetuation harms]].<ref name=fsu>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

==Penalties==
===Incarceration===
Under federal law, any person who, under subsection (a)(5), “knowingly possesses, or knowingly accesses with intent to view” child pornography may be imprisoned for up to ten years with the maximum raised to twenty years in cases involving the depiction of a child under twelve. If the person has a prior sex-abuse-related conviction, he faces a minimum term of ten years’ imprisonment and maximum of twenty years.<ref name=fsu/>

===Barrier crime===
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>

===Disenfranchisement===
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony." Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>

===Foster care and adoption===
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-06-25T23:17:42Z

Lysander: /* History */

Receipt of child pornography

2020-06-25T23:16:28Z

Lysander: /* History */

PROTECT Act of 2003

2020-06-25T23:15:16Z

Lysander: /* Overview */

The '''PROTECT Act of 2003''' ({{USPL|108|21}}, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing [[child abuse]].<ref name=DOJfactsheet>{{cite web|url=http://www.usdoj.gov/opa/pr/2003/April/03_ag_266.htm |title=Fact Sheet PROTECT Act |publisher=Department of Justice|date=April 30, 2003}}</ref><ref name=fulltext>{{cite web |url=http://thomas.loc.gov/cgi-bin/query/z?c108:s151: |title=Full Text of S.151 - PROTECT Act (Enrolled as Agreed to or Passed by Both House and Senate)|publisher=Library of Congress}}</ref> "PROTECT" is a [[backronym]] which stands for "'''P'''rosecutorial '''R'''emedies and '''O'''ther '''T'''ools to end the '''E'''xploitation of '''C'''hildren '''T'''oday".

The PROTECT Act incorporates the '''Truth in Domain Names Act''' ('''TDNA''') of 2003 (originally two separate Bills, submitted by Senator [[Orrin Hatch]] and Congressman [[Mike Pence]]), codified at 18 U.S.C. § 2252(B)(b).<ref name=Aspen1>{{cite book|title=The law of electronic commerce|author=Jane K. Winn and Benjamin Wright|edition=4th|publisher=Aspen Publishers Online|year=2000|isbn=9780735516489|pages=11–21|volume=2008–02 Supp.}}</ref>

== Overview ==
The law has the following effects:<ref name=DOJfactsheet/><ref name=govtracksummary>{{cite web|title=Track.us. S. 151--108th Congress (2003): Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 |publisher=GovTrack.us (database of federal legislation) |url=http://www.govtrack.us/congress/bill.xpd?bill=s108-151&tab=summary|accessdate=2008-09-01}}</ref>

*Provides for mandatory life imprisonment of [[sex offense]]s against a minor if the offender has had a prior conviction of abuse against a minor, with some exceptions.
*Establishes a program to obtain criminal history background checks for volunteer organizations.
*Authorizes wiretapping and monitoring of other communications in all cases related to child abuse or [[kidnapping]].
*Eliminates [[Statute of limitations|statutes of limitations]] for child abduction or child abuse.
*Bars pretrial release of persons charged with specified offenses against or involving children.
*Assigns a national [[AMBER Alert]] Coordinator.
*Implemented Suzanne's Law. Named after Suzanne Lyall, a missing college student of the [[University of New York at Albany]], the law eliminates waiting periods before law enforcement agencies will investigate reports of [[missing person]]s ages 18–21. These reports are also filed with the [[NCIC]].
*Prohibits computer-generated [[child pornography]] when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).
*Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the [[Miller test]] of being obscene, OR are engaged in sex acts that are deemed to meet the same obscene condition. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors).
*Sentences increased:
:*Maximum sentence for possession increased from 5 years to 10 years.
:*Minimum sentence for receipt established as 5 years.
:*Maximum sentence for receipt increased from 15 to 20 years.
*Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad, with or without the intent of engaging in such sexual misconduct.<ref>Chaninat & Leeds [http://www.thailawforum.com/sex-crimes-in-thailand.html Sex Crimes in Thailand Part 1]: US Sex Laws Abroad. Thailand Law Forum, September 2009</ref>
*Incorporated other proposed legislation existing at the time as:
**the [[Federal Protective Service (United States)#Home and Family Security|Code Adam Act of 2003]], (Title III, Subtitle D)
**the [[Domain name#Truth in Domain Names Act|Truth in Domain Names]] proposed language ([[s:Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003/Title V/Subtitle B|Title V, Subtitle B]])
**the Secure Authentication Feature and Enhanced Identification Defense Act of 2003, also cited as the SAFE ID Act, ([[s:Secure Authentication Feature and Enhanced Identification Defense Act of 2003|Title VI, Section 607.]])
**the [[Illicit Drug Anti-Proliferation Act|Illicit Drug Anti-Proliferation Act of 2003]] ([[s:Illicit Drug Anti-Proliferation Act of 2003|Title VI, Section 608.]])
For the purposes of this law, illicit sexual conduct includes commercial and non-commercial sex with anyone under 18.<ref>U.S. Department of State http://travel.state.gov/travel/cis_pa_tw/cis/cis_1467.html</ref><ref name=fulltext/><ref name=18usc117>United States Code, [http://uscode.house.gov/download/pls/18C117.txt Title 18 Chapter 117], 18 USC Sec. 2423, Subsections (c) and (f)</ref><ref name=18usc109a>United States Code, [http://uscode.house.gov/download/pls/18C109A.txt Title 18 Chapter 109A], 18 USC Sec. 2243, Subsection (a)</ref><ref name="juryinstruct-commerce">[http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02180.htm Jury Instruction -- Affecting Interstate or Foreign Commerce]</ref> Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.{{citation needed|date = December 2013}}

The PROTECT Act mandated that the [[United States Attorney General]] promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '[[2257 Regulations]]'. The [[Free Speech Coalition]] has filed a lawsuit against the [[United States Department of Justice]] claiming the 2257 Regulations are [[unconstitutional]].{{citation needed|date = December 2013}}

The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as ''virtual child pornography''.<ref name=DOJfactsheet/><ref name=fulltext/><ref name=govtracksummary/> Provisions against virtual child pornography in the [[Child Pornography Prevention Act of 1996]] had been ruled unconstitutional by the [[Supreme Court of the United States|U.S. Supreme Court]] in its 2002 decision, ''Ashcroft v. Free Speech Coalition''.

The act was signed into law by [[President of the United States|President]] [[George W. Bush]] on April 30, 2003.<ref name=whitehouse>{{cite web| url=http://georgewbush-whitehouse.archives.gov/news/releases/2003/04/20030430-6.html |title=President Signs PROTECT Act: President's Remarks Upon Signing of S. 151, the Protect Act |date=April 30, 2003|publisher=, White House Office of the Press Secretary}}</ref>

==Application of the Act==
On April 6, 2006, in ''[[United States v. Williams]]'', the [[United States Court of Appeals for the Eleventh Circuit|Eleventh Circuit Court of Appeals]] ruled that one component of the PROTECT Act, the "pandering provision" codified at {{UnitedStatesCode|18|2252A}}(a)(3)(B) of the [[United States Code]], violated the [[First Amendment of the United States Constitution|First Amendment]]. The "pandering provision" conferred criminal liability on anyone who knowingly

<blockquote>advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.</blockquote>

The ''Williams'' court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.{{citation needed|date = December 2013}}

The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.<ref>{{cite web|url=http://www.supremecourt.gov/opinions/07pdf/06-694.pdf|accessdate=2008-05-19|format=PDF|title=Decision in US v. Williams}}</ref>

The first conviction of a person found to have violated the sections of the act relating to virtual child pornography, [[Dwight Whorley]] of Virginia, was upheld in a 2-1 panel decision of the [[Fourth Circuit Court of Appeals]] in December 2008.<ref>{{cite web|url=http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf|accessdate=2010-01-16|format=PDF|title=Decision in US v. Whorley}}</ref> This decision was consistent with the [[Ashcroft v. Free Speech Coalition|U.S. Supreme Court]] ruling in A''shcroft v. Free Speech Coalition'' in which the Supreme Court held that virtual child pornography was protected free speech, provided that the virtual depictions are not obscene. Obscenity, including obscene depictions of children, either virtual or real, is unprotected speech. (Whorley was also convicted of offenses in connection with pornographic depictions of real children.)

Also in, 2008, [[Christopher Handley]] pled guilty to charges related to the PROTECT Act, in exchange for a six month plea deal. He was facing a maximum sentence of up to twenty years. While not convicted by a jury, he was the first person charged—and convicted—under the PROTECT Act for the lone act of possessing art deemed obscene. Both prosecutors and defense attorneys noted that the plea deal was due to the high risk of a constitutional challenge, and the federal government agreed that Handley would not be required to register as a sex offender. {{citation needed|date = December 2013}}

==References==
{{reflist}}

== Further reading ==
* {{cite journal|author=Christopher G. Clark|title=The Truth in Domain Names Act of 2003 and a Preventative Measure to Combat Typosquatting|journal=[[Cornell Law Review]]|volume=89|issue=6|pages=1476|date=September 2004|ssrn=754524}}
* {{cite journal|author=Lisa D. Davis|title=Trapping Mousetrappers with the Truth in Domain Names Act of 2003: The constitutionality of prohibiting "typosquatting" on the Internet|journal=[[Alabama Law Review]]|date=2005–2006|pages=521–544|volume=57|issue=2|publisher=[[University of Alabama]]|url=http://law.ua.edu/lawreview/articles/Volume%2057/Issue%202/Davis.pdf|format=[[Portable Document Format|PDF]]}}

==External links==
* [http://www.govtrack.us/data/us/bills.text/108/s/s151enr.pdf Text of the Act] at [[GovTrack]]
* [http://thomas.loc.gov/cgi-bin/query/z?c108:S.151: Text of the Act] at [[THOMAS]]
* [http://caselaw.lp.findlaw.com/data2/circs/11th/0415128p.pdf Text of 11th Circuit decision in United States v. Williams]
* [http://www.govtrack.us/congress/bill.xpd?bill=s108-151 Legislative history] at [[GovTrack]]

Child Protection and Obscenity Enforcement Act

2020-06-25T21:14:05Z

Lysander:

{{Law icon}}
The '''Child Protection and Obscenity Enforcement Act of 1988''', title VII, subtitle N of the [[Anti-Drug Abuse Act of 1988]], {{USStatute|100|690|102|4181|1988|11|18}}, {{USBill|100|HR|5210}}, is part of a [[United States]] [[Act of Congress]] which places stringent record-keeping requirements on the producers of actual, sexually explicit materials. The guidelines for enforcing these laws (colloquially known as '''2257 Regulations''' ([http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title28/28cfr75_main_02.tpl C.F.R. Part 75]), part of the United States [[Code of Federal Regulations]], require producers of sexually explicit material to obtain proof of age for every model they shoot, and retain those records. Federal inspectors may at any time launch inspections of these records and prosecute any infraction.

While the statute seemingly excluded from these record-keeping requirements anyone who is involved in activity that "does not involve hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted,"{{Citation needed|date=June 2011}} the [[United States Department of Justice|Department of Justice]] (DOJ) defined an entirely new class of producers known as "secondary producers." According to the DOJ, a secondary producer is anyone who "publishes, reproduces, or reissues" explicit material.

On October 23, 2007, the [[United States Court of Appeals for the Sixth Circuit|6th Circuit U.S. Court of Appeals]] ruled that the record keeping requirements were [[facial challenge|facially]] invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech.<ref name="Court Opinion">[http://www.ca6.uscourts.gov/opinions.pdf/07a0430p-06.pdf Court Opinion], October 23, 2007</ref> However the US DoJ, under control by [[US Attorney General]] [[Michael B. Mukasey]], has asked for, and was granted, an ''[[en banc]]'' review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned.<ref>{{cite web|author=XBIZ |url=http://www.xbiz.com/news/88845 |title=DOJ Asks For Rehearing On 6th Circuit’s 2257 Ruling |publisher=XBIZ.com |date=2008-01-15 |accessdate=2012-06-06}}</ref> The Sixth Circuit subsequently reheard the case ''[[en banc]]'' and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.<ref name="uscourts1">{{cite web|url=http://www.ca6.uscourts.gov/opinions.pdf/09a0063p-06.pdf |title=Connection Distributing Co. v. Holder, (6th Cir. 2009) (''en banc''). |format=PDF |date= |accessdate=2012-06-06}}</ref>

The United States Supreme Court refused to hear (denied [[certiorari]] to) the April 2009 challenge to ''[[Connection Distributing Co. v. Holder]]'', the Sixth Circuit Court of Appeals decision on the legality of 2257 and its enforcement. (See "Order List", Monday, October 5, 2009).<ref>{{cite web|url=http://www.supremecourt.gov/orders/courtorders/100509zor.pdf |title=Order List (10/05/2009) |format=PDF |date= |accessdate=2012-06-06}}</ref>

Congress, realizing the potential for technology in the creation of pornography, prohibited the use of computers to distribute child pornography.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

== Allied administrative law (2257 Regulations) ==
The [[administrative law]] that has been created by virtue of the Act to guide and aid its enforcement, 28 C.F.R. 75 (also known as the 2257 Regulations), specifies [[business record|record-keeping]] requirements for those wishing to produce [[sexually explicit|sexually explicit media]], and imposes criminal penalties for failure to comply. This is intended to ensure that no person under the [[age of consent|legal age]] is involved in such undertakings. (See [[Pornography in the United States#Legality|Pornography in the United States]] and [[Child pornography laws in the United States]] for more information about the term "sexually explicit".)

The regulations define the terms "primary producer" and "secondary producer". The term "produces" means:
{{quote|
* actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;
* digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or
* inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content of a computer site or service that contains a visual depiction of, sexually explicit conduct;

and does not include activities that are limited to:
* photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
* distribution;
* any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
* the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the [[Communications Act of 1934]] (47 U.S.C. 231)); or
* the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute such selection or alteration of the content of the communication.<ref>{{cite web|url=http://www.law.cornell.edu/uscode/text/18/2257 |title=18 USC § 2257 - Record keeping requirements | LII / Legal Information Institute |publisher=Law.cornell.edu |date= |accessdate=2012-06-06}}</ref>}}

A "primary producer" is defined in the set of rules as {{quote|any person
*who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.
When a corporation or other organization is the primary producer of any particular image or picture, then no individual employee or agent of that corporation or other organization will be considered to be a primary producer of that image or picture.<ref name=ecfr/>}}

A "secondary producer" is {{quote|any person
*who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or
*who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.

When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.<ref name=ecfr>{{cite web|url=http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=454a81363130b6c9a4195f01f3ad6ffe&rgn=div8&view=text&node=28:2.0.1.1.30.0.17.1&idno=28 |title=Electronic Code of Federal Regulations: |publisher=Ecfr.gpoaccess.gov |date= |accessdate=2012-06-06}}</ref>}}

One may be both a primary and a secondary producer.<ref name=ecfr/>

"Manage content" means {{quote|to make editorial or managerial decisions concerning the sexually explicit content of a computer site or service, but does not mean those who manage solely advertising, compliance with copyright law, or other forms of non-sexually explicit content.<ref name=ecfr/>}}

"Computer site or service" means {{quote|a computer server-based file repository or file distribution service that is accessible over the Internet, World Wide Web, Usenet, or any other interactive computer service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service includes without limitation, sites or services using hypertext markup language, hypertext transfer protocol, file transfer protocol, electronic mail transmission protocols, similar data transmission protocols, or any successor protocols, including but not limited to computer sites or services on the World Wide Web.<ref name=ecfr/>}}

The regulations also spell out requirements for the maintenance, categorization, location, and inspection of records, as well as legal grounds for exemption of these requirements. They require that records be maintained for five years after the dissolution of a business that had been required to maintain them.

The Department of Justice can modify the regulations, based on the discretion, or possible future requirements, that has been given to it to do so by the Act.

==Enforcement==
It is clear there is much sexual material on the Internet and elsewhere that would fall within the terms of this law. At present, the Department of Justice{{Who|date=January 2012}} has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against [[Mantra Films, Inc.]], based in [[Santa Monica, California]], and its sister company MRA Holdings (both owned by [[Joe Francis]]), who are the originators of the ''[[Girls Gone Wild (franchise)|Girls Gone Wild]]'' video series. Francis and several of his managers were prosecuted, citing infractions of this act.<ref>[http://www.cnn.com/2006/LAW/09/12/ggw.plea/index.html 'Girls Gone Wild' producers fined $2.1 million], [[CNN]], 12 September 2006.</ref>
In January 2007, these charges were for the most part dropped.<ref>[http://www.foxnews.com/story/0,2933,241910,00.html Judge Drops Most Charges Against 'Girls Gone Wild' Producer Joe Francis], [[Associated Press]], 5 January 2007.</ref>

However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.

Also in 2006, the [[FBI]], under the direction of United States attorney general [[John Ashcroft]], began checking the 2257 records of several pornography production companies.<ref>[http://business.avn.com/articles/FBI-Visits-K-Beech-29271.html FBI Visits K-Beech], [[AVN (magazine)|AVN News]], 15 December 2006.</ref>

The final regulations implementing Congressional amendments to 2257, termed 2257A, were updated December 18, 2008 and went into effect on the same day as the inauguration of [[Barack Obama]]. On that same day, January 20, 2009, President Obama, through Chief of Staff [[Rahm Emanuel]], requested by memorandum that heads of departments allow for review by the incoming administration of all regulations not then final.<ref>{{cite web|url=http://www.freespeechcoalition.com/pressreleasesmedia/114-fsc-request-delay-of-implementation-for-2257-revisions.html |title=Free Speech Colation Request Delay of Implementation for 2257 Revisions |publisher=Freespeechcoalition.com |date=2009-04-15 |accessdate=2012-06-06}}</ref>

==Legal challenges==
The initial iteration of 2257, first passed in 1988, mandated that producers keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a [[rebuttable presumption]] that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional in American Library Association v. Thornburgh on First Amendment grounds. 713 F. Supp. 469 (D.D.C. 1989) vacated as moot 956 F.2d 1178 (D.C. Cir. 1992).

After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accompanying regulations, but the new version was upheld by American Library Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994).<ref>{{cite web|title=United States Court of Appeals, District of Columbia Circuit. - 33 F.3d 78|url=http://law.justia.com/cases/federal/appellate-courts/F3/33/78/513193/|work=law.justia.com|accessdate=March 24, 2012|date=September 20, 1994}}</ref>

In Sundance Association Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).<ref name="ILT">{{cite web|url=http://ilt.eff.org/index.php/2257_Reporting_Requirements|title=2257 Reporting Requirements|publisher=[[Electronic Frontier Foundation|eff.org]] Internet Law Treatise|accessdate=February 28, 2011}}</ref>

In 2004, bound by the new [[PROTECT Act of 2003]], the DOJ made sweeping changes to the 2257 Regulations to keep up with the proliferation of sexually explicit material found on the Internet. However, the "secondary producer" language not only remained in the regulations, but the DOJ created a much wider interpretation of who exactly was a "producer" of sexually explicit material and hence was required to comply with the new regulations. Anyone who touched explicit content in any way could arguably be considered a producer and be forced to maintain identification records of models along with a highly complex indexing system that many argue is impossible to implement. Under the current law, anyone who commercially operates a website or releases sexually explicit images of actual humans, regardless of the format (DVD, photos, books, etc.), is subject to penalties that include up to five years in [[federal prison]] per each infraction of the regulations. These regulations do not currently apply to explicit drawings (i.e., adult cartoons, [[hentai]]) as no actual humans are involved in such production. However, the exclusion for such sexually explicit drawings are being confronted with changes to these laws in the recently signed [[Adam Walsh Child Protection and Safety Act]] addendum to the adult record-keeping requirements now codified at 18 U.S.C. § 2257A.<ref>The relevant portion of the bill is [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ248.109.pdf Pub. L. 109–248].</ref> At this time, though signed into law, the portions of § 2257A which include simulated sex are not enforceable.

In June 2005, the [[Free Speech Coalition]] (FSC) sued the Department of Justice to enjoin the regulations until they can be challenged in whole in court. In December 2006, a federal judge issued an injunction protecting secondary producers who are members of the Free Speech Coalition, but FBI inspections of these producers are still ongoing despite the injunction.<ref>[http://web.archive.org/web/20080506113522/http://avnonline.com/index.php?Primary_Navigation=Web_Exclusive_News&Action=View_Article&Content_ID=278754FSC Seeks Halt to 2257 Inspections Following 'Illegal Searches'], AVN Online, 17 November 2006.</ref>

On March 30, 2007, [[United States District Court for the District of Colorado|District Court]] Judge Walker Miller issued an interim ruling, which dismissed some causes of action and allowed others from the initial 2005 case to proceed in light of the Walsh Act amendments.<ref>[http://web.archive.org/web/20080510070035/http://www.freespeechcoalition.com/FSCView.asp?action=preview&coid=1044 freespeechcoalition.com], 3 April 2006.</ref> The actual trial phase has not yet begun.

On October 23, 2007, the [[United States Court of Appeals for the Sixth Circuit|6th Circuit U.S. Court of Appeals]] ruled the federal record-keeping statute unconstitutional, holding that the law is overly broad and facially invalid.<ref name="Court Opinion"/> The Sixth Circuit subsequently reheard the case ''[[en banc]]'' and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.<ref name="uscourts1"/>

===Proposed regulations===
On July 12, 2007, the Department of Justice issued a preliminary set of addendum record keeping regulations based on the Walsh Act amendments onto the existing regulations at 25 C.F.R. pt. 75.<ref>[http://web.archive.org/web/20071027113713/http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-13500.htm 72 Fed. Reg. 38,033] (to be codified at 28 C.F.R. pt. 75).</ref> These new regulations are meant to encompass the inclusion of simulated sexual actions that do not actually show explicit sexual contact or fulfillment that were included by the Adam Walsh Act that was signed into law in 2007.

These new regulations were allowed in actual legal enforcement by the dismissal of its constitutionality challenges by U.S. District Judge Michael Baylson on July 28, 2010,<ref>{{cite web|url=http://www.informationlaw.com/blog/Federal-Judge-Dismisses-Free-Speech-Coalitions-2257-Suit.htm |title=Federal Judge Dismisses Free Speech Coalition's 2257 Suit - Information Law Blog |publisher=Informationlaw.com |date=2010-07-28 |accessdate=2012-06-06}}</ref> as the US Supreme Court had already refused to hear the same challenge in 2009.

===Court affirmation of 2257 and 2257A===

After the July 2010 decision by U.S. District Judge Michael Baylson to dismiss the FSC’s lawsuit per the request of US Attorney Eric Holder's DOJ, agreeing that USC 2257 and 2257A regulations are constitutional,<ref>http://www.communitydefense.org/cases/20100727.pdf</ref> the FSC then filed an additional appeal to amend their original challenge to the constitutionality challenge.<ref>{{cite web|author=XBIZ |url=http://www.xbiznewswire.com/view.php?id=124525 |title=Adult Industry News For The Media |publisher=XBIZ Newswire |date= |accessdate=2012-06-06}}</ref>

On Monday, September 20, 2010, Judge Baylson rejected FSC's amended appeal, allowing the government record-keeping inspections to be restarted.<ref>{{cite news|title=Analysis: 2257 Judge Rejects FSC's Motion For Reconsideration|url=http://business.avn.com/articles/Analysis-2257-Judge-Rejects-FSC-s-Motion-For-Reconsideration-412508.html|accessdate=March 24, 2012|newspaper=Adult Video News|date=September 20, 2010|author=Mark Kernes}}</ref>

===2012 FSC Appeal status===

The FSC stated that they would appeal the case to the [[United States Court of Appeals for the Third Circuit|Court of Appeals for the Third Circuit]].

On April 16, 2012, the Free Speech Coalition (FSC) won its appeal to the U.S. Third Circuit Court of Appeals, overturning an earlier District Court decision to dismiss the suit challenging the constitutionality of 18 U.S.C. § 2257 and 2257A. The appeal continues through the court system.<ref>{{cite web|url=https://fscblogger.wordpress.com/2012/04/16/2257-decision-reversed-on-appeal-in-third-circuit/|title=2257 Decision Reversed on Appeal in Third Circuit|work=FSC Blog}}</ref>

==See also==
*[[Commons:Help:Sexual content]]

==References==
<references/>

==External links==
{{commonscat|Child Protection and Obscenity Enforcement Act warning}}
* Department of Justice Final Rule for 28 CFR Part 75: Effective January 20, 2009 | [http://www.zei2257.com/FR-28CFR75-20081218.html HTML] / [http://www.zei2257.com/FR-28CFR75-20081218.pdf PDF]
* [http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=c400d3f7be6a08a261ddf625e1187d09;rgn=div5;view=text;node=28%3A2.0.1.1.30;idno=28;cc=ecfr Text of 28 C.F.R. pt. 75]: amendments to the regulations became effective on June 23, 2005, via GPO Electronic Code of Federal Regulations
* [http://my.execpc.com/~xxxlaw/primer.html Historical Background to Section 2257] at my.execpc.com
[[Category:Law/statute law]]

Protection of Children Against Sexual Exploitation Act

2020-06-25T21:11:21Z

Lysander:

The '''Protection of Children Against Sexual Exploitation Act of 1977''', passed in January 1978, was the first anti-child pornography legislation. It redefined child pornography as sexual abuse, rather than as a morality issue, and extended the prohibitions on trafficking of minors to include boys as well as girls.<ref>{{cite book|title=The Politics of Prostitution|author=Outshoorn, Joyce}}</ref> Two women who participated in the policy debate over child sexual exploitation were Rep. [[Elizabeth Holtzman]] and [[Judianne Densen-Gerber]].

The drafters of this legislation assumed that they were constrained by [[obscenity]] law standards in their approach. The Act, therefore, did not exceed the bounds of existing obscenity standards as articulated in ''[[Miller v. California]]''. Following the decision in ''[[New York v. Ferber]]'', the [[Child Protection Act of 1984]] was passed, changing the meaning of "sexual conduct" to include certain non-obscene pictures of children and raising the age of "children" for purposes of the law from 16 to 18. Under the 1977 law, only 23 defendants were convicted during the seven years it was in effect. In contrast, at least 214 defendants were convicted in the 28 months following the enactment of the 1984 law.

==Provisions==
This Act targeted the commercial production of obscene materials that involved children under the age of sixteen. Penalties for possession ranged between a ten-year statutory maximum for first-time offenders with a two-year mandatory minimum, and a fifteen-year statutory maximum for subsequent offenders.<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

==References==
{{reflist}}

[[Category:Criminal law]]

Market-based harms

2020-06-25T21:06:09Z

Lysander: Redirected page to Market thesis

#redirect [[market thesis]]

Possession of child pornography

2020-06-25T21:05:57Z

Lysander:

'''Possession of child pornography''' is an offense whose punishment varies by jurisdiction. The U.S. Supreme Court decision ''[[Osborne v. Ohio]]'' authorized its criminalization.

==History==
In 1990, Congress passed the [[Child Protection Restoration and Penalties Enhancement Act]], making it illegal to knowingly possess child pornography under § 2252(a)(4)(B).<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Theory==
The harms of child pornography possession are said to include [[enabling harms]], [[gateway harms]], [[correlation harms]], [[market-based harms]], [[norm-undermining harms]], and [[perpetuation harms]].<ref>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>

==Penalties==
===Barrier crime===
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>

===Disenfranchisement===
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony." Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>

===Foster care and adoption===
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-06-24T19:19:18Z

Lysander:

Receipt of child pornography

2020-06-24T19:14:13Z

Lysander:

Possession of child pornography

2020-06-24T18:13:40Z

Lysander:

'''Possession of child pornography''' is an offense whose punishment varies by jurisdiction. The U.S. Supreme Court decision ''[[Osborne v. Ohio]]'' authorized its criminalization.

==History==
In 1990, Congress passed the [[Child Protection Restoration and Penalties Enhancement Act]], making it illegal to knowingly possess child pornography under § 2252(a)(4)(B).<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Barrier crime==
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>

==Disenfranchisement==
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony." Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>

==Foster care and adoption==
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Possession of child pornography

2020-06-24T18:12:26Z

Lysander:

'''Possession of child pornography''' is an offense whose punishment varies by jurisdiction. The U.S. Supreme Court decision ''[[Osborne v. Ohio]]'' authorized its criminalization.

==History==
In 1990, Congress passed the [[Child Protection Restoration and Penalties Enhancement Act]], making it illegal to knowingly possess child pornography under § 2252(a)(4)(B). Once “possession” was criminalized, the Sentencing Commission was tasked with restructuring the Guidelines in light of the 1990 amendments. The Commission responded by developing a new Guideline section that would punish “receipt” and “possession” equally. The Commission’s proposal would punish “receiving,” “possessing,” and “transporting” child pornography under § 2G2.4, which imposed no mandatory minimum sentence. The new Guideline would continue to punish offenders intending to traffic child pornography under § 2G2.2, which carried a mandatory minimum five-year sentence.

However, the Commission’s rational new scheme was upended by an amendment included in an appropriations bill introduced by Senator Jesse Helms of North Carolina. The amendment was never debated and it forced the Commission to punish “receipt” convictions under§ 2G2.2.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Barrier crime==
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>

==Disenfranchisement==
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony." Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>

==Foster care and adoption==
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

Receipt of child pornography

2020-06-24T18:08:24Z

Lysander: /* History */

Receipt of child pornography

2020-06-24T18:07:54Z

Lysander:

Receipt of child pornography

2020-06-24T18:04:55Z

Lysander: /* History */

Receipt of child pornography

2020-06-24T18:02:13Z

Lysander:

Receipt of child pornography

2020-06-24T18:02:05Z

Lysander:

Market thesis

2020-06-24T18:00:51Z

Lysander:

The '''market thesis''' is the notion that child pornography consumers increase the market for child pornography production.

[[Deirdre von Dornum]] writes, "Because child pornography is free, widely available and easy to produce, it is not subject to the normal laws of supply and demand."<ref>https://www.nhregister.com/news/article/Debate-rages-over-severity-of-child-porn-sentences-11503089.php</ref><ref>https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/sentencing_resources/defender_recommendations/written-statement-of-deirdre-d-von-dornum-at-ussc-2012-public-hrg-on-child-pornography-sentencing.pdf</ref> A 2012 [[U.S. Sentencing Commission]] report found, "Critics have contended that recent changes in Internet technology have undercut the ability of the criminal laws to affect the “market.”"<ref>https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf</ref>

A Senate report on child pornography observed: “the overwhelming majority of child pornography seized in arrests made in the United States has not been produced or distributed for profit.”<ref>S. Permanent Subcomm. on Investigations of the Comm. on Governmental Affairs, 99th Cong., 2d Sess., Child Pornography and Pedophilia 47 (Oct. 9, 1986).</ref><ref>https://books.google.com/books?id=vOAvAAAAIAAJ&pg=RA59-PA43&lpg=RA59-PA43</ref>

Congress's own actions tend to undercut the market thesis. In 1978, 18 U.S.C. § 2252 became law as part of the [[Protection of Children Against Sexual Exploitation Act of 1977]]. As enacted in 1978, § 2252 was much narrower in scope than it is today because Congress's original intent was to thwart the widespread commercialization of child pornography. The earliest version of § 2252 punished those transporting, shipping, distributing, or receiving child pornography in interstate or foreign commerce for the purpose of sale. However, it soon became apparent that the original legislation was too limited in scope because non-commercial trafficking of child pornography was also pervasive. To rectify this problem, Congress passed the [[Child Protection Act of 1984]] which amended § 2252 and made non-commercial trafficking a federal crime.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==References==
{{reflist}}

[[Category:Child pornography]]

United States Sentencing Guidelines

2020-06-24T17:52:38Z

Lysander:

The '''United States Sentencing Guidelines''' set out recommended penalties for federal child pornography offenses. |Some judges have been departing from the sentencing guidelines; for example, Judge [[Michael A. Ponsor]] sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.<ref>{{cite news|last=Valencia|first=Milton J.|title=US judges balk at rigid child porn sentences|url=http://articles.boston.com/2012-02-12/news/31052706_1_sentencing-guidelines-federal-judges-sentencing-commission|accessdate=27 June 2012|newspaper=Boston Globe|date=12 February 2012}}</ref> One of the main criticisms of the reasonableness of the child pornography guidelines is that the steep enhancements they provide apply in nearly every case and almost always boost the sentencing range to the higher end of the statutory range.<ref>{{cite journal|journal=Criminal Justice Reporter|publisher=BNA|volume=90|number=12|pages=382|date=21 December 2011|title=Presumption of Reasonableness Applies to Sentences within Pornography Guidelines}}</ref>

In a 2010 survey of federal judges by the [[U.S. 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.<ref>{{cite news|url=http://www.foxnews.com/us/2012/04/29/debate-rages-over-severity-child-porn-sentences/#ixzz1z1JmMKjU|title=Debate rages over severity of child-porn sentences|publisher=Associated Press|date=29 April 2012}}</ref> That figure has been steadily increasing since the Supreme Court in 2005 (in ''{{w|United States v. Booker}}'') affirmed that judges have the right to depart from commission recommendations. A concern with this high rate of departures is that it could create "unwarranted disparities" in how similar offenders who commit similar crimes are sentenced, which is anathema to the goals of the {{w|Sentencing Reform Act}}.

==Sentencing practices==
In 2007, 351 out of 1025 defendants sentenced for nonproduction-related offenses received downward departures from the recommended Guideline range. Today, over forty percent of defendants convicted of federal child pornography offenses receive sentences below the Guidelines.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Guidelines==
===Evolution of United States Sentencing Guideline Section 2G2.2===
The guideline governing possession and distribution of child pornography, United States Sentencing Guidelines section 2G2.2, was first promulgated by the Sentencing Commission in 1987. In the past several years, the section has been amended several times, resulting in increasingly lengthy sentences. These strict penalties result from amendments that have increased the number and severity of various sentencing enhancements. The current guideline includes enhancements if any of the following circumstances are established: the material includes prepubescent children or minors under twelve; the material depicts sadistic or masochistic conduct; the defendant has exhibited a "pattern of activity" involving sexual abuse of a minor; or the offense involved the use of a computer. Additional enhancements apply if the defendant distributed the material rather than merely possessing it. Finally, section 2G2.2 allows for escalating enhancements depending on the number of images possessed. Without any enhancement, the mandatory minimum for receipt of child pornography is five years.

In a comprehensive analysis of the history of section 2G2.2, Assistant Federal Public Defender Troy Stabenow examined the guideline's amendment history and determined that the changes resulted from "numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind." Stabenow describes how then-Senator Jesse Helms of North Carolina introduced a "morality earmark" into House Resolution 2622, the Treasury-Postal Service Appropriations Bill of 1991. Two religious organizations, Morality in the Media and the Religious Alliance Against Pornography, had sent letters to Senator Helms urging him to propose upward adjustments to the guidelines for child pornography crimes. Accordingly, the proposed amendment instructed the Sentencing Commission to increase the penalties for child pornography offenders.

The Sentencing Commission lobbied against the upward adjustments. The chair of the Commission wrote a letter to the House of Representatives opposing the proposed amendment and noting that it "would negate the Commission's carefully structured efforts to treat similar conduct similarly and to provide proportionality among different grades of seriousness of these offenses." The amendment was nevertheless added to the House bill and was eventually signed into law. Stabenow notes that this amendment marked the beginning of a series of changes to child pornography guidelines that "would come from Congress [rather than the Sentencing Commission], and would be dictated not by experience and study, but instead by a general moral sense that the penalties for "smut peddlers' should always, and regularly, be made stricter, not weaker." Stabenow then details several more congressionally mandated increases in the child pornography sentencing guidelines that were based on moral sensibilities rather than on scientific studies and empirical research.

The most far-reaching of these amendments arose in 2003 when two officials from the Department of Justice convinced freshman Congressman [[Tom Feeney]] to insert changes to the child pornography guidelines into an unrelated bill. Representative Feeney's amendment adjusted the sentencing guidelines for child pornography in various ways, including creating a five-year mandatory minimum and a potential five-level increase depending on the number of images possessed. Debate on the amendment was limited to twenty minutes, and it was eventually inserted into the Child Abduction Prevention Act. The Feeney Amendment was widely criticized for its failure to consult with the Sentencing Commission and for its lack of empirical support. It was opposed not only by the Sentencing Commission itself, but also by the Chairman of the House Committee on the Judiciary, the Judicial Conference of the United States, and the American Bar Association. Professor Steven Chanenson has summarized some of the concerns as follows:

{{cquote|Congress [for the first time] directly amended the Federal Sentencing Guidelines by drafting Guidelines text. In the past, Congress often had been content to issue directions to and requests for study from the Commission, but left it to the Commission to craft specific Guidelines text. This time, Congress completely ignored the expert role the Sentencing Commission was designed to play, cut the Commission out of the process entirely, and directly wrote Guidelines text to its own specifications.}}

The politicization of child pornography sentencing guidelines has resulted in a flawed and irrational sentencing scheme. For example, Stabenow describes a typical defendant with no criminal history who is convicted of possessing four short video clips and ten pictures. Since most of the enhancements are triggered in the average case, the recommended range for this hypothetical defendant would be 188 to 235 months (roughly fifteen-and-a-half to nineteen-and-a-half years). Stabenow compares this sentence to that of a fifty-year-old man who contacts a twelve-year-old girl over the internet and eventually arranges a meeting with her during which they have repeated sex. The conduct would be a violation of 18 U.S.C. § 2422(b), and the defendant would be sentenced under section 2G1.3. His recommended range would be 108 to 135 months (nine to just over eleven years). Stabenow concludes that this sentencing disparity, between a typical possessor of child pornography and a man who entices a child to have repeated sex with him, underscores the disproportionality of section 2G2.2.

===Table===
{| class="wikitable" style="text-align:left; width:50%"
|-valign="top"
! U.S. Sentencing Guideline
! U.S. Code
|- valign="top"
|{{ussg|2|G|1|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g13}} Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor
|
{{col-begin}}
{{col-break}}
*{{usc|8|1328}} (only if the offense involved a minor)
*{{usc|18|1591}} (only if the offense involved a minor)
*{{usc|18|2421}} (only if the offense involved a minor)
{{col-break}}
*{{usc|18|2422}} (only if the offense involved a minor)
*{{usc|18|2423}}
*{{usc|18|2425}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|1|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g21}} Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production
|
{{col-begin}}
{{col-break}}
*{{usc|18|1591}}
*{{uscsub|18|2251|a}}
*{{uscsub|18|2251|b}}
{{col-break}}
*{{uscsub|18|2251|c}}
*{{uscsub|18|2251|d|1|B}}
*{{uscsub|18|2260|a}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|2|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g22}} Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor
|
*{{usc|18|1466A}}
*{{usc|18|2252}}
*{{uscsub|18|2252A|a}}
*{{uscsub|18|2252A|b}}
*{{uscsub|18|2260|b}}
|-valign="top"
|{{ussg|2|G|2|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g23}} Selling or Buying of Children for Use in the Production of Pornography
|{{usc|18|2251A}}
|-valign="top"
|{{ussg|2|G|2|5|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g25}} Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email
|
*{{uscsub|15|7704|d}}
*{{usc|18|2257}}
*{{usc|18|2257A}}
|-valign="top"
|{{ussg|2|G|2|6|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g26}} Child Exploitation Enterprises
|{{uscsub|18|2252A|g}}
|-
|}

===Supervised release===
The guidelines provide, "If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended."<ref>http://www.ussc.gov/guidelines-manual/2014/2014-chapter-5#5d12</ref>

==References==
{{reflist}}
[[Category:Draft]]

United States Sentencing Guidelines

2020-06-24T17:51:29Z

Lysander:

The '''United States Sentencing Guidelines''' set out recommended penalties for federal child pornography offenses. |Some judges have been departing from the sentencing guidelines; for example, Judge [[Michael A. Ponsor]] sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.<ref>{{cite news|last=Valencia|first=Milton J.|title=US judges balk at rigid child porn sentences|url=http://articles.boston.com/2012-02-12/news/31052706_1_sentencing-guidelines-federal-judges-sentencing-commission|accessdate=27 June 2012|newspaper=Boston Globe|date=12 February 2012}}</ref> One of the main criticisms of the reasonableness of the child pornography guidelines is that the steep enhancements they provide apply in nearly every case and almost always boost the sentencing range to the higher end of the statutory range.<ref>{{cite journal|journal=Criminal Justice Reporter|publisher=BNA|volume=90|number=12|pages=382|date=21 December 2011|title=Presumption of Reasonableness Applies to Sentences within Pornography Guidelines}}</ref>

In a 2010 survey of federal judges by the [[U.S. 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.<ref>{{cite news|url=http://www.foxnews.com/us/2012/04/29/debate-rages-over-severity-child-porn-sentences/#ixzz1z1JmMKjU|title=Debate rages over severity of child-porn sentences|publisher=Associated Press|date=29 April 2012}}</ref> That figure has been steadily increasing since the Supreme Court in 2005 (in ''{{w|United States v. Booker}}'') affirmed that judges have the right to depart from commission recommendations. A concern with this high rate of departures is that it could create "unwarranted disparities" in how similar offenders who commit similar crimes are sentenced, which is anathema to the goals of the {{w|Sentencing Reform Act}}.

The guidelines provide, "If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended."<ref>http://www.ussc.gov/guidelines-manual/2014/2014-chapter-5#5d12</ref>

==Sentencing practices==
In 2007, 351 out of 1025 defendants sentenced for nonproduction-related offenses received downward departures from the recommended Guideline range. Today, over forty percent of defendants convicted of federal child pornography offenses receive sentences below the Guidelines.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>

==Evolution of United States Sentencing Guideline Section 2G2.2==
The guideline governing possession and distribution of child pornography, United States Sentencing Guidelines section 2G2.2, was first promulgated by the Sentencing Commission in 1987. In the past several years, the section has been amended several times, resulting in increasingly lengthy sentences. These strict penalties result from amendments that have increased the number and severity of various sentencing enhancements. The current guideline includes enhancements if any of the following circumstances are established: the material includes prepubescent children or minors under twelve; the material depicts sadistic or masochistic conduct; the defendant has exhibited a "pattern of activity" involving sexual abuse of a minor; or the offense involved the use of a computer. Additional enhancements apply if the defendant distributed the material rather than merely possessing it. Finally, section 2G2.2 allows for escalating enhancements depending on the number of images possessed. Without any enhancement, the mandatory minimum for receipt of child pornography is five years.

In a comprehensive analysis of the history of section 2G2.2, Assistant Federal Public Defender Troy Stabenow examined the guideline's amendment history and determined that the changes resulted from "numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind." Stabenow describes how then-Senator Jesse Helms of North Carolina introduced a "morality earmark" into House Resolution 2622, the Treasury-Postal Service Appropriations Bill of 1991. Two religious organizations, Morality in the Media and the Religious Alliance Against Pornography, had sent letters to Senator Helms urging him to propose upward adjustments to the guidelines for child pornography crimes. Accordingly, the proposed amendment instructed the Sentencing Commission to increase the penalties for child pornography offenders.

The Sentencing Commission lobbied against the upward adjustments. The chair of the Commission wrote a letter to the House of Representatives opposing the proposed amendment and noting that it "would negate the Commission's carefully structured efforts to treat similar conduct similarly and to provide proportionality among different grades of seriousness of these offenses." The amendment was nevertheless added to the House bill and was eventually signed into law. Stabenow notes that this amendment marked the beginning of a series of changes to child pornography guidelines that "would come from Congress [rather than the Sentencing Commission], and would be dictated not by experience and study, but instead by a general moral sense that the penalties for "smut peddlers' should always, and regularly, be made stricter, not weaker." Stabenow then details several more congressionally mandated increases in the child pornography sentencing guidelines that were based on moral sensibilities rather than on scientific studies and empirical research.

The most far-reaching of these amendments arose in 2003 when two officials from the Department of Justice convinced freshman Congressman [[Tom Feeney]] to insert changes to the child pornography guidelines into an unrelated bill. Representative Feeney's amendment adjusted the sentencing guidelines for child pornography in various ways, including creating a five-year mandatory minimum and a potential five-level increase depending on the number of images possessed. Debate on the amendment was limited to twenty minutes, and it was eventually inserted into the Child Abduction Prevention Act. The Feeney Amendment was widely criticized for its failure to consult with the Sentencing Commission and for its lack of empirical support. It was opposed not only by the Sentencing Commission itself, but also by the Chairman of the House Committee on the Judiciary, the Judicial Conference of the United States, and the American Bar Association. Professor Steven Chanenson has summarized some of the concerns as follows:

{{cquote|Congress [for the first time] directly amended the Federal Sentencing Guidelines by drafting Guidelines text. In the past, Congress often had been content to issue directions to and requests for study from the Commission, but left it to the Commission to craft specific Guidelines text. This time, Congress completely ignored the expert role the Sentencing Commission was designed to play, cut the Commission out of the process entirely, and directly wrote Guidelines text to its own specifications.}}

The politicization of child pornography sentencing guidelines has resulted in a flawed and irrational sentencing scheme. For example, Stabenow describes a typical defendant with no criminal history who is convicted of possessing four short video clips and ten pictures. Since most of the enhancements are triggered in the average case, the recommended range for this hypothetical defendant would be 188 to 235 months (roughly fifteen-and-a-half to nineteen-and-a-half years). Stabenow compares this sentence to that of a fifty-year-old man who contacts a twelve-year-old girl over the internet and eventually arranges a meeting with her during which they have repeated sex. The conduct would be a violation of 18 U.S.C. § 2422(b), and the defendant would be sentenced under section 2G1.3. His recommended range would be 108 to 135 months (nine to just over eleven years). Stabenow concludes that this sentencing disparity, between a typical possessor of child pornography and a man who entices a child to have repeated sex with him, underscores the disproportionality of section 2G2.2.

==Table==
{| class="wikitable" style="text-align:left; width:50%"
|-valign="top"
! U.S. Sentencing Guideline
! U.S. Code
|- valign="top"
|{{ussg|2|G|1|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g13}} Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor
|
{{col-begin}}
{{col-break}}
*{{usc|8|1328}} (only if the offense involved a minor)
*{{usc|18|1591}} (only if the offense involved a minor)
*{{usc|18|2421}} (only if the offense involved a minor)
{{col-break}}
*{{usc|18|2422}} (only if the offense involved a minor)
*{{usc|18|2423}}
*{{usc|18|2425}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|1|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g21}} Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production
|
{{col-begin}}
{{col-break}}
*{{usc|18|1591}}
*{{uscsub|18|2251|a}}
*{{uscsub|18|2251|b}}
{{col-break}}
*{{uscsub|18|2251|c}}
*{{uscsub|18|2251|d|1|B}}
*{{uscsub|18|2260|a}}
{{col-end}}
|-valign="top"
|{{ussg|2|G|2|2|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g22}} Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor
|
*{{usc|18|1466A}}
*{{usc|18|2252}}
*{{uscsub|18|2252A|a}}
*{{uscsub|18|2252A|b}}
*{{uscsub|18|2260|b}}
|-valign="top"
|{{ussg|2|G|2|3|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g23}} Selling or Buying of Children for Use in the Production of Pornography
|{{usc|18|2251A}}
|-valign="top"
|{{ussg|2|G|2|5|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g25}} Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email
|
*{{uscsub|15|7704|d}}
*{{usc|18|2257}}
*{{usc|18|2257A}}
|-valign="top"
|{{ussg|2|G|2|6|url=http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2g26}} Child Exploitation Enterprises
|{{uscsub|18|2252A|g}}
|-
|}

==References==
{{reflist}}
[[Category:Draft]]

Receipt of child pornography

2020-06-24T17:35:27Z

Lysander: