The majority found for the state. But there was also a dissenting opinion, expressed in the judgment of Brennan J (Marshall and Stevens JJ agreeing):
| Appellant was convicted for possessing four photographs of nude minors, seized from a desk drawer in the bedroom of his house during a search executed pursuant to a warrant. Appellant testified that he had been given the pictures in his home by a friend. There was no evidence that the photographs had been produced commercially or distributed. All were kept in an album that appellant had assembled for his personal use and had possessed privately for several years... At bottom, the Court today is so disquieted by the possible exploitation of children in the production of the pornography that it is willing to tolerate the imposition of criminal penalties for simple possession. While I share the majority's concerns, I do not believe that it has struck the proper balance between the First Amendment and the State's interests, especially in light of the other means available to Ohio to protect children from exploitation and the State's failure to demonstrate a causal link between a ban on possession of child pornography and a decrease in its production. [emphasis added] |
Justice Brennan made reference, also, to an earlier Supreme Court case, Stanley v Georgia 394 US 557 (1969), which ruled that a state could not prohibit the possession of "obscene" material:
| Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. |
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Are the reasons in favour of criminalization as overpowering as is commonly thought?
Here's four of them.
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1. The market argument. Legalizing "mere" possession would encourage production.
But: (a) if paying for it is still illegal, how is production encouraged? The dissenting judges were skeptical of the causal connection here; and (b) even if there is a causal connection, there are still other legislative possibilites. For instance, consider gun control: people who own guns may be required to register themselves; to produce records when requested; to store and use the guns in particular ways.
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2. The child-corruption argument. Child porn can be used to seduce children.
I think there is truth here. Many child offenders were caught because children were unsettled by images shown to them -- which seems to demonstrate at least two things: firstly that people do attempt to use images in this way, and secondly that seduction is by no means automatic.
But aren't there a whole bunch of other ways, and more effective ways, of seducing children? Has the absence of this instrument from the molester's toolkit affected the rate and possibility of child abuse?
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3. The consent and continuing damage argument. There can be psychological damage to the children depicted, or to they adults they become -- they wouldn't want the images circulated.
Similar questions can be raised about the Abu Ghraib photographs -- doesn't distributing them, and looking upon them, amount to participation in the prisoners' humiliation? Aren't you violating their desire not to be seen in these ways? Should it be legal to publish such photos?
It's mainly this argument that does persuade me towards criminalization, or at least tight control. There are plenty of other situations where we accord people a property interest in their images -- for instance, images taken in private can't be freely distributed; and many images can't be used for commercial reasons without consent, etc.
At the same time, I recognize that there's no direct harm; if you view an image of me in the privacy of your home, how does it hurt me? And it's an open question to me the extent of control that people should be permitted over their images.
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4. The user-corruption argument. Child porn causes you to abuse children.
Similar concerns are raised with respect to other media. For instance, perhaps Grand Theft Auto encourages car theft, horror movies encourage murder and torture (be wary of Bryn), and adult pornography encourages rape.
For child porn, I searched a psychology database, and could only find three studies whose abstracts provided any sort of statistics or meaningful results (although I know there are other results out there).
One study focused on pornography generally (rather than child porn in particular) (David Lanson Wheeler, "The relationship between pornography usage and child molesting", Dissertation Abstracts International Section A: Humanities and Social Sciences, volume 57(8-A), February 1997, p 3691):
| The purpose of this study was to investigate the relationship between pornography usage and child molesting in men. A sample of 150 child molesters involved in treatment programs and 122 non-molesting men from southern states volunteered to participate in the study... The child molesters were far more likely to have used more pornography in adulthood and the most common type of materials were "soft-core" materials, which involved nudity or consenting sexual activities between adults. Some child molesters reported a cathartic effect of viewing pornography, but this perception was not supported by other results of this study in that over one third of the child molesters reported using pornographic materials shortly before committing a sexual offense. [emphasis added] |
I believe there are other studies out there, incidentally, where child molesters do report an incitement effect.
Another study profiled 11 pedophiles (Dennis Howitt, "Pornography and the paedophile: Is it criminogenic?", British Journal of Medical Psychology, volume 68(1), March 1995, pp 15-27):
| Presents case studies of 11 fixated adult male pedophiles interviewed in a private clinic for sex offenders about topics including their offending, their psychosexual histories, pornography, fantasy, and sexual abuse in childhood... Explicit child pornography was uncommon. However, Ss also generated their own erotic materials from relatively innocuous sources such as television advertisements, clothing catalogs featuring children modeling underwear, and similar sources. In no case did exposure to pornography precede offending-related behavior in childhood. All Ss had experienced childhood sexual abuse by adults or older peers. [emphasis added] |
A third study looked at people convicted on possession charges, and inquired, among other things, into the likelihood of future offences (Michael C Seto and Angela W Eke, "The Criminal Histories and Later Offending of Child Pornography Offenders", Sexual Abuse: Journal of Research and Treatment, volume 17(2), April 2005, pp 201-10):
| The likelihood that child pornography offenders will later commit a contact sexual offense is unknown. In the present study, we identified a sample of 201 adult male child pornography offenders using police databases and examined their charges or convictions after the index child pornography offense(s). We also examined their criminal records to identify potential predictors of later offenses: 56% of the sample had a prior criminal record, 24% had prior contact sexual offenses, and 15% had prior child pornography offenses... The average time at risk was 2.5 years; 17% of the sample offended again in some way during this time, and 4% committed a new contact sexual offense. [emphasis added] |
So of people charged with child porn offences, 24% of whom had already molested a child, 4% went on to commit child abuse. But I think the study quite inconclusive for a number of reasons. For instance, these people had already been caught, and processed through the penal system, so presumably there was some deterrence and rehabilitation effect. The 4% figure might be lower than it otherwise would have been. On the other hand, the people caught were prepared to break the law in the first place; so the 4% figure might be higher than it would be, if law-abiding people possessed child porn.
The conclusion I draw is that the evidence is tentative as to whether viewing child porn causes child abuse. I'm quite prepared to change my mind in the light of further information and results. But perhaps it will never be other than tentative... There are problems in gathering data (how could you prove or disprove the claim, or isolate a factor to quantify it?); there are problems in saying whether child porn is a cause or merely a correlation; and presumably the effect varies between individuals and cultures -- most people are repulsed by child porn; on some it has a cathartic or sublimation effect and reduces the possibility of child abuse; on others it has an incitement effect.
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One final thought: Law needn't neatly be reformed to fit morality. For instance, sometimes law shapes morality; and sometimes there are practical constraints -- a blanket rule (for instance, about age of consent) might be justifiably imposed even if it does injustice in the particular case (although justice should be developed to be more and more sensitive to the particular).
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Notes
-- There are also problems with measuring catharsis. Compare the alleged preventative effect of prisons -- how do you count the crimes that people would have committed but didn't?
-- Variation between individuals doesn't preclude a claim of "causation". Compare the case of smoking. I'd be prepared to operate on the belief that "smoking causes cancer", even if there's also huge variation -- many people who smoke don't get cancer; and many people with cancer have never smoked.
-- For a sample of claims that adult porn increases crime rates or negative attitudes, see Caroline West, "Pornography and Censorship", 5 May 2004. For a sample of claims that it lowers crime rates, see Steven E Landsburg, "How the web prevents rape", 30 October 2006; and Milton Diamond and Ayako Uchiyama, "Pornography, rape and sex crimes in Japan", International Journal of Law and Psychiatry, 1999, volume 22(1), pp 1-22.
-- Should any thoughts or fantasies be forbidden (sexual fantasies, revenge fantasies, self-harm fantasies...)? Should you give yourself permission to think whatever you like in the privacy of your own mind? Does suppression, and the creation of the taboo, have its own effects, either for the individual or for society?
For a discussion of these issues see: Paul Roberts, "Forbidden thinking", Psychology Today, May/Jun 1995 -- the bottom line of which is that it can be bad to suppress such thoughts and healthy to indulge them; a person fantasizing about being raped won't necessarily put themselves in a position where this is likely to happen; but if you're worried that thoughts will translate to action, see a psychologist
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