Who are “passive pedophiles?” These are individuals who possess child pornography. They do not try to sexually abuse or molest children. Instead they want to view sexually explicit material involving children, some of which graphically portrays children being sexually abused or molested by adults and other children. This material is “child pornography.” Federal law, 28 U.S.C. § 2256, defines child pornography as any visual depiction of sexually explicit conduct involving someone under 18 years of age. Three other federal statutes, 28 U.S.C. §§§ 2251, 2252 and 2252A, criminalize the production, distribution, reception and possession of child pornography.

While there has been an increasing recognition among federal judges, the defense bar, and some prominent criminal justice professionals that child pornography penalties under U.S. Sentencing Guidelines, especially those for simple possession, are far too harsh, attorneys general in two states (Texas and New Jersey) favor increasing state penalties for possession of such material. There are two overriding reasons for this law enforcement conflict. First, there is a general belief that the possession of child pornography, which fuels the production of such material, is as psychologically damaging to the victim as the sexual abuse. More than three decades ago former Supreme Court Justice Byron White wrote: “Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him for future years, long after the original misdeed took place.” However, David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, says there is no empirical evidence to support this position: “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself.”

Second, there is the strong belief that individuals who possess child pornography have an interest in sexually abusing children, and their addiction to such material demonstrates they lack the ability to control their active pedophilia desires. But a December 2012 report by the U.S. Sentencing Commission—Report to Congress: Federal Child Pornography Offenses (Reprt)—which was submitted to Congress in February, reviewed 2700 child pornography cases and found only one in three of the child pornography offenders had a known history of actual child sexual abuse. Once again the empirical evidence does not support the broad range of misconceptions about child pornography and active pedophilia.

These misconceptions resulted in the Sentencing Guidelines, spurred by Congressional legislation, to recommend harsher penalties for child pornography-related offenses over the last two decades. In 2004, the average penalty for possession of child pornography was 4.5 years which had ballooned to nearly eight years by 2010. The harsher, more aggressive attitude about child pornography also resulted in a staggering increase in child pornography prosecutions up from 700 a decade ago to 2000 annually today, according to the Report.

These harsher trends have caused a significant number of federal judges to re-think their sentencing attitude in child pornography cases. For example, in 2004, 84 percent of the sentences in these cases were within the recommended Guidelines’ range, but, in the wake of United States v. Booker (a 2005 Supreme Court case which held that the Guidelines are only “advisory”), today only half of child porn sentences are within the recommended Guidelines range.

The Report recognized the concern of those federal judges who believe that child pornography penalties are too harsh and the sentencing process needs to be overhauled, at least in receipt and possession cases. This judicial concern, shared by the U.S. Justice Department and the defense bar, reflect five “criticisms” that the child pornography Guidelines are “neither ‘empirically’ based nor a reflection of the Commission’s normal institutional expertise and, instead, reflects outmoded congressional directives,” according to the Report.

If you find yourself charged with possession of child pornography in Illinois, it is in your best interest to immediately contact a qualified Illinois Criminal Defense Attorney.