As I’ve made clear many times, I don’t represent defendants in kiddie porn cases because of my personal feelings about the offense.  Despite criticism for this decision, it remains my position.  But that doesn’t mean that all reason is lost, even when discussing unpalatable cases.

The WSJ Law Blog posts about the fact that individuals convicted of viewing kiddie porn are, under the federal sentencing guidelines, subject to punishments that can be more severe than those for people who engage in child molestation or create the porn.

Thanks to a DOJ initiative, more than 2,000 individuals are prosecuted each year for computer-based child exploitation crimes, most of them for downloading or sharing sexual images of minors. Severe federal sentencing guidelines — spurred by Congress in recent years — can push up the recommended sentences to 15, 20 years or longer.

Does that kind of punishment — for viewing but not creating the images — fit the crime? Some federal judges think not and are giving lower-than-recommended sentences.

The concern is not that the people who view child pornography should be allowed to do so, or shouldn’t be subject to punishment.  This isn’t about black or white, but shades of gray.

The government’s view is expressed very clearly.

But Drew Oosterbaan, the DOJ official in charge of these prosecutions says a threat undoubtedly exists from passive viewers of child porn. “[I]f your daughter’s camp counselor is using child porn, common sense dictates there is a threat to your daughter,” he says.

The rationale for treating viewers of kiddie porn as harshly as child molesters falls back on our old friend, “common sense.”  An appeal to “common sense” is employed whenever the government prefers that we apply prejudice in place of reason.  Like the old marijuana is the gateway to heroin argument, the government justifies unduly severe treatment of passive viewers like child molesters because they are tomorrow’s sexual predators.

And judges aren’t necessarily fooled by this slippery slope argument either.

“The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child,” wrote William Griesbach, a federal judge in Green Bay, Wisc.

The first comment to this WSJ post, echoing the community reaction discussed in this post about Charles Ethison, makes far more sense then our government’s reasoning:

But since I became a mom, I’ve found that I really don’t care if the laws governing this issue are unfair to the predators, or would be offenders. I would rather the law err on the side of caution here. I think it’s worth a few innocent (?) kiddy porn viewers getting an unfair sentence, to prevent just one kid from getting hurt.

When it comes to children, concerns about fairness, proportionality and reason go out the window.  The bottom line to any reasonable parent, is that their child’s safety is so vastly more important than anyone else’s “rights” that they will happily sacrifice pretty much anything in the world to protect their children.  It’s a perfectly understandable position for a parent to take.

The problem is that the reasonable position from a parent can’t be the official position of the government or the legal system, which is designed to remove the purely emotional reaction to crime and fear and replace it with a broader view of societal impact.

As a parent and someone who finds kiddie porn utterly despicable, I can completely understand the parent’s reaction.  As a lawyer, I know that this is a legally untenable position, and that it clouds the real issues and problems in dealing with kiddie porn. 

While I, like most, am appalled that anyone would have any desire to be a passive viewer of such garbage, refusal to distinguish between mere viewing and its creation, observation and acting upon it, demonstrates both a total lack of proportionality and presents bad penal policy.  If the passive viewer is treated the same, if not worse, than the child molester, than there is no threat of punishment to prevent the passive viewer from acting upon impulse and engaging in an act of sexual molestation of a child.

As much as I am sickened by the idea of people watching kiddie porn, the idea of someone sexually touching a child is much, much worse.  The penalties for each must reflect the relative harm, and not be swept up in the natural tide of fear, anger and disgust.