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28 Pace L. Rev. 847 (2007-2008)
Child Pornography's Forgotten Victims

handle is hein.journals/pace28 and id is 855 raw text is: Child Pornography's Forgotten Victims Audrey Rogers* State legislatures and Congress have enacted many laws to protect children from becoming victims of sex crimes. Yet, chil- dren live in an increasingly dangerous world attributable in part to the explosive growth of the Internet. In particular, the Internet has dramatically increased access to child pornogra- phy. With just a couple of clicks of the mouse and a few strokes of the keyboard, a person can find any type of picture, including graphic images of children being tortured and raped. Neverthe- less, some judges, scholars and members of the public at large treat possession of child pornography as a victimless crime. This paper examines this phenomenon. The Supreme Court has carved out child pornography from First Amendment protections because children are harmed in all aspects of its production, dissemination and possession. While there is little serious debate over the harm producers and distributors inflict on children, this view does not always extend to possessors of images. For example, following the demise of mandatory sentencing under the federal guidelines in United States v. Booker,' a number of United States federal district court judges have deviated substantially from the guidelines in sentencing possessors of child pornography on the ground that it is a victimless crime.2 One federal circuit court treats the children depicted in pornographic images as merely secondary * Associate Professor of Law, Pace Law School. 1. 543 U.S. 220 (2005). 2. 18 U.S.C. § 2252(b)(2) (1999) provides that a person who possesses or at- tempts to possess child pornography shall be fined or .. . imprisoned not more than 10 years, or both . . . . In contrast, the statute provides for minimum sentences of no less than five years for transporting, receiving, distributing or pos- sessing with the intent to sell child pornography. 18 U.S.C. § 2252(b)(1) (1999). The producer of child pornography is subject to a statutory minimum imprison- ment of fifteen years. 18 U.S.C. § 2251(e) (1999). The United States Sentencing Guidelines provide a framework for calculating the appropriate sentence within the statutory range. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (2007). 847

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