Raising the Stakes for Child Pornography
PROTECT's Exclusive Interview with Andrew Vachss
February, 2006
—Andrew Vachss, PARADE Magazine
February 2006
With over 75 million readers, PARADE is the largest circulation magazine in America. In a world where cable news programs fight over a few million viewers each night, the Sunday newspaper supplement comes into 36 million living rooms each week and stays a while. So when PARADE asked PROTECT national advisory board member Andrew Vachss to write about one of the most important human rights issues of our time — child pornography — it guaranteed that an entire nation would be listening. And by featuring such a serious piece so prominently on its pages, PARADE showed its own commitment to helping children throughout the world.
In his powerful article, Vachss wastes no time on the usual sentimentality or rhetoric that surrounds the topic of child abuse. He has declared war and asks Americans to join him. In this exclusive interview, Vachss talks with PROTECT about his PARADE article, the role of PROTECT in making change and exactly how Americans can wage, and start winning, the war on child pornography. NOTE: Vachss resigned from Protect in 2015, and is no longer associated with the organization.
PROTECT: In your article, you say we must enact federal laws to allow the United States to sue on behalf of as-yet-unidentified children depicted in seized pornography. What, specifically, do you mean by this?
VACHSS: Essentially, I am speaking of expanding existing "asset forfeiture" statutes in a unique way. Let me (briefly) explain. Asset forfeiture is divided into two basic types:
1. Criminal forfeiture which requires in personam jurisdiction and a criminal conviction; and
2. Civil forfeiture where there is in rem jurisdiction over the
asset itself. Even under recent reforms, the burden of proof on the
government is low. Civil forfeiture does not require a conviction.
It's a little more complicated than that, however, because there are then two subtypes of civil forfeiture:
1. Civil judicial forfeiture, where the government has to actually go to court to get an order of forfeiture; and
2. Administrative forfeiture. The vast majority of property is seized
without anyone objecting. Administrative forfeiture is limited to
certain specified property — in a narcotics case, examples would be the
drugs themselves and the vehicles used to transport them.
Civil forfeiture gained prominence during the so-called "war on drugs," and gained strength with the evolution of RICO statutes. Now civil forfeiture is possible for a whole variety of crimes (including child pornography, under Title 18 United States Code 2254) but the laws involving forfeiture for drug trafficking or money laundering tend to be much stronger than those for other crimes. For example, there are expansive multi-national civil forfeiture laws when narco-trafficking is involved.
I specifically want the federal government to be able to sue, because it has both the resources and the mandate. I am not advocating "class action" suits on behalf of unidentified victims. The goal is not enrichment of individual lawyers. The goal is to benefit child pornography victims, penalize the profiteers, and add assets to the agencies charged with enforcing the law.
The seized assets should be used to improve all aspects of law enforcement in this area, from hiring more prosecutors and investigators to improving technological tracing skills and equipment. A portion — I feel 25% is more than adequate — should be set aside in an escrow fund for victims who are eventually identified. There are several different federal governmental entities involved in asset forfeiture, depending on the tasks to be performed. A rough breakdown is:
- Seizures are performed by investigative agencies such as the DEA, FBI, and ATF.
- Legal proceedings are handled by the US Department of Justice, which has a specific "Asset Forfeiture Program."
- Sales of seized assets are handled by the US Marshals Service, which offers these seized assets for sale ... and currently nets approximately $200 million annually.
Finally, the Office for Victims of Crime is also a US Department of
Justice program. Its role in civil forfeiture seems limited to advising
victims that they have the right to claim against seized items, and
providing certain forms. OVC does not itself participate in or
administer the filing of these victim claims.
Under my plan, Justice would use 75% of all assets seized for the purposes outlined above, with the remaining 25% to be held in escrow by OVC and disbursed to victims under simplified procedures.
PROTECT: Do victims of child pornography have any rights under current federal law? And, if so, what are they?
VACHSS: Immediately following the section on civil forfeiture, there is a section of the US code authorizing civil suits by victims of child pornography (18 USC 2255). However, it contains a strict statute of limitations (6 years after the act, or 3 years after reaching adulthood). And the wording of the statute is bizarre, in that it requires "personal injury" — as if it were somehow possible for a child pornography victim not to have suffered a "personal injury." If a victim does qualify, then the minimum damages are $50,000.
PROTECT: Why is it so important to abolish the statute of limitations?
VACHSS: Look at the answer to the previous question. Most victims will never know that depictions of their victimization were used (and traded) for the pleasure (and/or profit) of degenerates. And the overwhelmingly majority of those who eventually discover it will be well past the "limit." Of course, this refers only to material that is no longer being "displayed." Such displays — typically on the Internet — are a continuing crime, and the statute of limitations is not a factor.
PROTECT: You advocate "raising the stakes" by increasing the penalties for all participants in child pornography. You say this will deter some predators, and, for those it does not, they will be locked away for a long time. Can you be more specific?
VACHSS: First of all, "raising the stakes" would shift the risk/gain paradigm significantly. No longer would the child pornography "business" be as attractive to organized crime, because the current chasm between profit and penalty would be radically reduced. Current federal penalties may be found under 18 USC 2252. There is a clear distinction between "possessing" and "transporting" child pornography, and prior convictions do, in fact, increase the sentencing potential in each case.
It is very important to note that, as to the charge of possession, it is now an affirmative defense that the defendant possessed three or less "visual depictions" and either (in simplified terms) destroyed them promptly or reported them to law enforcement. This acknowledges the ugly truth that the Internet is used to "test market" the child pornography "product," and many people could, as I state in the article, find themselves staring at child pornography simply because they innocently or accidentally clicked a misleading link.
As for specifics, why not use a model similar to that applied to narcotics? So, while "simple possession" would bring a lower penalty than "possession with intent to distribute," there would be a "weight" correlation as well. Thus, "simple possession" of several images would be a lower offense than possession of, say, hundreds of images. "Trading" images would be equivalent to "distribution." And so on. I don't see possession of child pornography to ever be less than a felony, with sex offender registration a requirement. Repeat offenders would, as with any crime, draw heavier sentences. For running a "ring," a "gateway," or any other form of large-scale method of trafficking in child pornography, I would hope for nothing less than a twenty-five year minimum sentence. And for the actual production of the "product" — which, by its very definition, requires rape, sodomy, or gross sexual exploitation of a child — I do not think a life sentence would be inappropriate.
As we have learned all throughout America recently, it is not the maximum possible sentence that is critical; it is the minimum. So, for example, in the current federal scheme, sentences for possession of child pornography range from as high as ten years to as low as a fine! Even "transporting" ranges from a high of twenty years to a low of five. Without a comprehensive study of actual sentences imposed, we do not know what the "typical" offender receives.
Be aware, however, that the Federal Sentencing Guidelines, currently the subject of both hot debate and considerable litigation, will play a role in any actual sentence imposed.
PROTECT: After our 2005 victory winning tougher child sexual abuse laws in California, PROTECT is now taking aim at that state's child pornography laws, which are among the weakest in the nation. You write that the war against child pornography must be waged at the federal and international levels. What role and responsibility do the states have to fight this war aggressively?
VACHSS: The states play a key role, at all levels. Why demand "no safe harbors!" in foreign countries when we allow them here at home? While I would like to see uniform laws across the country — laws which have the power to actually deter and significantly incarcerate — I doubt this will ever happen unless the federal government were to tie some of its criminal justice funding to, say, mandatory minimums for "simple possession" of child pornography.
Why do I feel "simple possession" is so critical? Two reasons:
1. As I said in the article, crime chases dollars. Although the huge
networks grab all the headlines, without individual customers — those
who purchase child pornography and end up charged with "simple
possession" — the networks are out of business. They run continuing
criminal enterprises which are rooted in the desire of individuals to
possess certain images. If those individuals were facing felony convictions, with actual prison time, and were forced to register as sex offenders, some deterrence would immediately
ensue. For every "collector" deterred, less money goes to the
syndicates. If we don't stop the buyers, there will always be sellers;
and
2. America's pattern-recognition software needs to be re-coded. Myths
such as "just looking at pictures does no harm" should be attacked for
what they are: camouflage for predators. Because, in truth, every
individual who purchases child pornography is subsidizing the rape of
children. If we truly believe that exploitation of children is a human
rights issue, how can those who purchase the "product" be "harmless"?
How we penalize criminal activity is a cultural message. Any state which
allows especially soft penalties for "simple possession" of child
pornography has sent a message of its own. A message I personally do not
believe reflects the will of its citizens.
And please don't buy into the nonsense that this is an "Internet issue." Child pornography has been around ever since it has been possible to record images. In truth, the greatest single technological aid to child pornographers was the invention of the Polaroid camera, because it permitted production of the "product" without the risk of involving outsiders in the processing of the images (stills or film). Home video soon followed. And now we have Web cams that come with most new systems. But the means of production should never be confused with the motive. Yes, the Internet has allowed global marketing — which is why the federal government will always have a unique role in law enforcement against this crime — and it has greatly increased profitability. But it doesn't "cause" child pornography, or "turn normal citizens into pedophiles."
Speaking of the Internet, if you run across child pornography, report it directly to law enforcement, not some self-appointed "watchdog" group which has no power to actually do anything. When someone breaks in your house, you don't call a neighbor and ask them to call 911 for you, right? You dial direct, because it is the fastest way to get help. We don't need more "stats," we don't need more "research," we need more criminals interdicted, indicted, and incarcerated.
Remember, District Attorneys are elected public officials. Any local D.A.'s Office should be happy to give you a copy of your state's laws governing child pornography so you can see for yourself if you feel the penalties — especially those always-dangerous minimum penalties — are what you feel they should be. If they are not, read the answer to the next question.
PROTECT: What can people do to make this happen, besides the usual "write your congressman" tactics?
VACHSS: As recent events have made (sadly) clear, lobbying plays a major role in legislation. Children have no "lobbyist" on their payroll. But they could have, if enough citizens joined the National Association to Protect Children. I don't claim objectivity here. I have advocated for an "NRA for Kids" for many years. Now we have one. And it runs on the same engine as all Political Action Committees (PACs): money. But this isn't about contributing money, as valuable as that would be. It isn't about fundraisers, as wonderful as those have been. It's about a personal commitment. Think what you like about the NRA, but its members are real believers. They care about something, and they make it very clear to Congress what they care about. In other words, they vote their concerns. So a slew of form e-mails exhorting your Senators and Congressional Representatives to support the changes the article demands would mean something, but probably not enough. But a pack of actual letters (that's right: dreaded snail mail, or even faxes) would have a much more powerful effect. Note: this works probably even more effectively on the State level, particularly if a special interest group opposed to whatever reform is sought already has the "ear" of highly placed legislators who have the power to take a bill and "kill it in committee." If your letters say that your vote depends on what your representative does to stop the evil of child pornography, then you'd see change!
