Child Pornography, Irrationality, and Technology

I've written several posts ("Girls Gone Mild", "Child Pornography and Illogical Legal Structures", "Child Nudist Camps") relating to child pornography, because I think the issue is extremely troubling and also an excellent example of how moral apathy cannot be contained and compartmentalized within society. As I wrote before,

For instance, a 14-year-old can get married in Hawaii, but if he or she decides to take pictures of the wedding night they'll go to jail. Similarly, it would be basically impossible to ban nudist camps on private property, but the government wants to punish anyone who takes pictures of their kids in the bathtub.

Society wants to have it both ways. We want sexual permissiveness for everyone, all the time, under any and every circumstance... oh, except kids. They must be completely isolated from all sexuality. Oh, except for sex ed, starting in middle school. Children can't consent to be photographed, but can get married in many states. And it's unconstitutional for a state to require parental permission or even notification before allowing a minor to have an abortion.

It's all hand-waving. There's no cohesive policy because no policy could satisfy all these conflicting objectives.

And now we're starting to reap the results.

Boland, 37, of Lakewood, is one of a handful of criminal-defense experts in the country with the knowledge to testify about digital-imaging technology and the ways pornographers are using it to enhance and distribute their wares via the Internet. ...

Boland has teamed with criminal defense lawyers who are exploiting a provision of Ohio law that says to obtain a conviction, a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child - an extremely difficult level of proof for police and prosecutors, Boland says.

Without the evidence to refute Boland's testimony and prove authenticity, judges threw out child-pornography charges in Summit and Portage counties in March. A Columbiana County judge has reserved his ruling until trial.

And the simple fact of the matter is that Dean Boland is correct: there is no way to prove whether or not a digital image has been altered. Prosecutors are outraged because it means that many/most/all of their child pornography cases are going to be thrown out, but what's the alternative? Defendants are facing what amounts to life in prison, so how can anyone argue that the threshold for proof should be lowered? If guilt can't be proven, the accused must go free.

Possession crimes are always particularly tricky anyway. Imagine how easy it would be to send an enemy to jail just by dropping a few pictures onto his machine and then calling the cops. I'm sure every defendant screams "Those aren't mine!", and most of them are lying, but how can you tell? The images could be sent as an email attachment with an incorrect file extension, and the recipient would never know what they were until the cops came knocking with their anonymous tip.

U.S. District Judge Sven Erik Holmes has been asked to decide the constitutionality of a prior federal law that required a defendant to "knowingly" possess pornographic images of children in order to be convicted. A defense ruling could cause a "firestorm" across the country, and take precedent over state laws, Boland said.

"If that happens, the overwhelming majority of Internet child-porn cases in the United States would be gone," Boland said. "The only people they'll be able to prosecute in the country will be the actual porn producers."

But I imagine that most producers aren't located in the United States, which means they'd be effectively out of legal reach.

Again, I don't have the solution. I suspect that there isn't a solution that would satisfy everyone. Personally, I think possessing child pornography is heinous, but less heinous than producing child pornography, which is in turn less heinous than murder. We have a high threshold for guilt when it comes to proving murder, and I think we must maintain that same threshold when it comes to child pornography. It's better to let the guilty go free than to convict the innocent.

(HT: Clayton Cramer and Eugene Volokh.)

Update:
Here's a Salon.com article by James R. Kincaid discussing some of the consequences of our society's confusion over children and sexuality. I certainly don't agree with all his premises, but his extrapolations are rational.