In reversing the 17½ year sentence imposed on 53 year old construction company owner William Irey, the 11th Circuit called it “far beyond the heartland of depravity.”  Irey’s conduct was “horrific”.  The Orlando Sentinel describes his crimes:

Irey engaged in “sexual torture that went far beyond the heartland of depravity even for child molesters,” the appeals court ruled. The court said Irey created “some of the most graphic and disturbing child pornography that has ever turned up on the internet.”

Irey took the photos while he was in Cambodia, where, the court said, he preyed on vulnerable, poverty-stricken girls, had sex with them, sexually tortured them and wrote obscene, degrading words on their bodies. Investigators found more than 1,200 images on his computer.

The 11th Circuit, en banc, held the sentence substantively unreasonable.

In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.

We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.

Put differently, they just couldn’t take the idea that Irey would walk out of prison one day.  David Markus does an excellent job of parsing the dissents at Southern District of Florida Blog.  On the law, the dissents clearly have the legal upper hand.  But this wasn’t a case decided on the law, but on how much depravity a gaggle of judges could take.

The aspect of this case that gives rise to this post is Irey’s posting the images of his conduct, sexually torturing girls as young as 4 years, on the internet.  This is the nexus between those who commit such atrocities and those who view them.

Certainly, there are defendants rounded up in the sex offender hysteria who don’t tread anywhere near the line of depravity that begins to justify either the harsh sentences imposed or the ruined life caused by the sex offender registry.  Where, along that spectrum, does the person fall who repeatedly views and/or downloads the images that someone like Irey posts?

In the course of a discussion of the hypocrisy surrounding sex offender hysteria, Norm Pattis wrote something that gave me pause.

Don’t get me wrong: I don’t think that possession of pornographic images on a computer makes a person a sex offender or a danger to society.

It’s not clear to me what Norm means by pornographic images.  In the post from whence this sentence came, it referred to child pornography, and so I accept that as its definition.  Like Norm, it’s unclear to me that viewing images of child pornography is a an inherent gateway to committing the acts depicted.  In fact, I suspect that its cathartic for some viewers, giving them the visceral reaction without having to ever touch a child.

But somebody, somewhere, did commit an atrocity on a child.  And to some greater or lesser extent, that there are others who get off on this depravity contributes to it.  I put aside, for purpose of this discussion, my personal revulsion at the idea that anyone could find it acceptable to view the rape of a four year old.  Only a fundamentally diseased mind could derive excitement or pleasure from an act so disgusting.  How a person could not vomit from viewing such an image is beyond me.

Clearly, viewing an image is different than engaging in the acts depicted.  The revulsion that I, and others, feel on the subject notwithstanding, it’s unduly facile to tie the two together merely because we’re disgusted by it all.  As Irey’s conduct went far beyond the heartland of depravity, viewing the product of his conduct is a world apart from engaging in the conduct itself. 

Yet it’s not okay.  To some extent, a monster like Irey connected his depravity with sharing images on the internet.  It motivated him and compelled him to take something awful and horrific and spread it around like the most virulent cancer possible.  It infected others.  Does that mean that others will rush out to sexually torture four year olds?  Hardly, but if one viewer gets it into his head that if Irey can do it, so can he, then it’s one too many.  There is no child, here or elsewhere, who should have to endure rape and sexual torture.  There is no excuse for any child to be put at risk.

This is not to suggest that either the harsh sentences being imposed on those who download child porn are proper, or that the vast array of conduct that has been wrapped up under the sex offender rubric is justified.  Those are entirely different issues.  What I do suggest, however, is that the viewing of child pornography is very wrong, and criminal.  This isn’t a moralistic challenge, but a line drawn prohibiting harm done to children.

Sorry, but there is no reason why anyone need encourage the conduct of a person like Irey by viewing their images on the internet.  There is no reason why any person should be permitted to view or download images of the rape and sexual torture of a child.  It is a crime and it should be a crime.  And it’s completely, totally sick.  There is no justification for it whatseover.

We may be criminal defense lawyers.  We may argue the disproportionality of sentences for crimes.  We may stand against the mindless expansion of crimes to encompass conduct that doesn’t belong there.  But some things are wrong.  This is wrong.  There should never be such a thing as a heartland of depravity.