Although I was a criminal defense attorney, that work included no child pornography cases. My first personal involvement with a child pornography charge came in my teaching career when a colleague–I will call him Fred–was arrested for having pornographic images of children on his work computer. Subsequently, many more such images were found on his home computer.

These events led to many reports in all sorts of media including on Fox’s O’Reilly show before charges of sexual harassment led to a change in Bill’s career path. (I was invited to enter that “no-spin zone” to discuss Fred’s situation. I declined.) In media accounts, Fred was invariably described as a “child pornographer,” and I began to think about what that label conveyed. What does the term elicit for you?

Fred, in fact, was in a long-term, successful marriage. He had two daughters doing well in elite schools. They described him as a loving, supportive father. He had a successful academic career. He had never sought out any untoward contact with any children. Neither colleagues nor students had ever indicated anything wrong with his behavior (other than that he could be boring.) He did look at images that most of us would find disgusting and that a psychologist did say indicated an arrested sexuality, but if so, no one could find any harm from it in his personal or professional life.

And when you hear someone is a child pornographer, what activities do you think that person has engaged in? Someone procures the children. Someone puts them into a sexual situation. Sometimes that may involve two similarly aged children, but it may also be an adult or older child raping or otherwise sexually abusing a child. Someone arranges the location of the activities. Someone takes pictures of the abuse. If it is internet porn, someone uploads images, perhaps to a website monitored by another person. If there are payments for others to view or download the images, someone operates a system to transfer funds.  Then someone views and often downloads the images. That person might keep this activity private or share images with others.

Fred was the last person in this chain. He had learned ways to download these images without payment, but he did not share the pictures with anyone. (He freely talked with the police when arrested. They were very interested in how such images could be viewed or downloaded without paying. Fred showed them how.) Every so often he looked at some of them; too many had been downloaded for all of them to ever have been viewed. It was his dirty, guilty secret; it was his addiction and sickness which had afflicted him from childhood.

I learned from Fred and from subsequent exposure to similar cases from public defenders that the downloaders–like Fred–were labeled “child pornographers.”  But I have also seen that in the all-too-rare circumstances when those who create or distribute the images are arrested, they, too, were called “child pornographers.” We don’t have separate terms for the different activities. It is as if the international drug smuggler, the meth manufacturer, the local drug seller, the doctor over-prescribing opioids, and the drug addict were all just labeled drug offenders without any distinctions.

The Senate “conservatives” who were trying to suggest that Jackson was soft on child pornography lumped this entire network of child pornographers into one category. If, however, a sentencing judge makes distinctions among the offenses and the offenders as she ought to do–and naturally would do for drug offenses–some of the sentencing would appear wrong to the simple-minded Senators.

Of course, the Senatorial simple mindedness may have been calculated merely to tar Jackson, but their motivations may have been even worse. A few years ago, it might have seemed unlikely that members of the august Senate would pander to QAnon conspiracists, who see child pornographers and sex traffickers around every pizza parlor. Now, however, “conservative” politicians do, and whether intentionally or not, the suggestion that the Supreme Court nominee favors pedophiles feeds the Q crazies.

Even if their questions were well-intentioned, the exchanges were still discouraging because they showed basic flaws in reasoning and revealed a frightening authoritarian streak. That Jackson gave “light” sentences to some has little meaning without comparisons. How often did she give “heavy” sentences to others convicted of pornography crimes? And what about the “control” group? How often have other judges given supposedly light sentences for child pornography? If many in the judiciary have done as much, this could indicate that there is something wrong with the sentencing laws covering these offenses. This should compel a congressional consideration of whether these laws can be made better, more nuanced. But, of course, while today’s Congress may revel in and seek to create gotcha moments, they seldom show much interest in making our laws better.

Finally, some Senators maintained the sentences were inappropriate because they were less than the prosecutor recommended. These Senators should be required to take many, many hours of remedial civics classes. We don’t need sentencing judges if they are supposed to unquestioningly follow what the prosecutor says. The Senators should know that if judges just do what prosecutors want, a little more of our freedom dies, but apparently that would be consistent with the new conservatism.

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