Guest Post by Michael Seto

Federal Child Pornography Sentencing Guidelines in the United States

Michael C. Seto, Ph.D.

Director of Forensic Rehabilitation Research, Royal Ottawa Health Care Group

Author of the forthcoming book, Internet Sex Offenders (June 2013, American Psychological Association)

The United States Sentencing Commission recently released its comprehensive review and analysis of federal child pornography offenses, following a multi-year process involving public hearings, consultations, and analysis of federal case file data. The report has lots to offer interested readers about federal child pornography cases, but I think the following points are particularly notable:

• Though they represent a small number of federal cases, child pornography offender numbers have been growing rapidly over the past decade, and are expected to continue to increase. This increase has put pressure on criminal justice and clinical resources.
• Application of the current federal sentencing guidelines results in average sentence lengths for first-time child pornography offenders that are less than a year shorter than those for repeat child pornography offenders. Moreover, the average sentence length for non-production child pornography offenders is comparable to or longer than for some contact sexual offenses involving minors.
• Presumably reflecting a sense that sentence length is not proportional to culpability (my opinion, not the Commission’s), the rate of judicial departures from the sentencing guidelines has increased steadily over the past number of years, making this offense category stand out from other federal offense categories in terms of variance in sentencing.
• There was recognition that there is a “spectrum of criminal culpability” in child pornography offending and that sentences ought to reflect this continuum, ranging from possession-only offenders to distributors to producers of child pornography. Some witnesses at the February 15, 2012 public hearing on the sentencing guidelines suggested a further distinction between passive distributors, who might allow (inadvertently or purposefully) access to their child pornography content on a peer-to-peer file sharing network and active distributors who communicate with others online and actively engage in the trade of content.
• There was also awareness that sentencing should reflect risk to reoffend, which our meta-analysis suggests is quite low about child pornography offenders, based on initial follow-up results. An unpublished analysis of federal child pornography cases is consistent with the meta-analysis.
• The sentencing guidelines need to keep pace with changes in technology. For example, there is currently a sentencing enhancement provision for offenders who have 600 or more images, to reflect a distinction based on amount of child pornography. The cutoff of 600 is arbitrary and no longer tenable because digital content is much more accessible and easy to store (e.g., through peer-to-peer file sharing). Many offenders have collections in the thousands or tens of thousands, and case law treats video as representing multiple images, such that a single video file could meet this enhancement threshold.

Reflecting these different considerations, emerging research, and case law, the United States Sentencing Commission suggested that the sentencing guidelines should be revised to reflect three primary factors: (1) The content of an offender’s child pornography collection and his (most are men) collecting behavior, including volume, age of depicted children, nature of sexual conduct depicted, and management of collection (e.g., organization); (2) association with other offenders, particularly in online communities of child pornography or other sexual exploitation offenders; and (3) evidence of exploitative and potentially dangerous sexual behavior, including but not limited to prior sexual offenses.

It will be very interesting to see how the United States Congress responds to this report, given the current political and social climates emphasize “tough on crime” stances and a moral abhorrence not only of child pornography offending but any evidence that someone is sexually attracted to children and thus at risk of sexually exploiting or abusing children.