# United States v. C.R.

> District Court, E.D. New York · May 16, 2011 · 792 F. Supp. 2d 343

URL: https://www.frixlaw.com/law-library/cases/8691933

## Case

- **Full name:** United States v. C.R.
- **Court:** District Court, E.D. New York
- **Decided:** May 16, 2011
- **Citations:** 792 F. Supp. 2d 343; 2011 WL 1901645
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Weinstein
- **Judges:** Weinstein
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by United States v. Reingold, 731 F.3d 204 (2013).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8691933

## How later opinions describe it (automated extraction)

- explaining that social and psychological science support the conclusion that the immature behaviors associated with youth “continue to apply to individuals into their 1 twenties, even mid-twenties or beyond” (quotation omitted)
- stating that “[s]tudies suggest that youth are more amenable to treatment than adults and that recidivism is low for youthful sex offenders”
- describing in detail the injury suffered by victims as a result of the dissemination of child pornography
- stating that “[i]nmates who are known to be sex offenders are often viciously preyed upon by other inmates”

## Opinion text

MEMORANDUM AND ORDER
JACK B. WEINSTEIN, Senior District Judge:
I.Introduction...............................................................347
II.Facts.....................................................................349
A. Defendant’s Childhood..................................................349
B. Sexual History ........................................................351
C. Instant Offense........................................................351
D. Guilty Plea............................................................353
i. Interpretation of the Statute — 18 U.S.C. § 2252 (a)(2)...................353
ii. Pressures on Defendants and Defense Counsel to Plead Guilty...........355
iii. Content of Defendant’s Files ........................................357
iv. Impact on Victims..................................................360
E. Threat................................................................363
i. History...........................................................364
ii. .Industry..........................................................367
iii. Content...........................................................370
iv. Viewers...........................................................372
v. Relationship Between Viewing and Acting; Real and Perceived
Harms..........................................................375
F. Effect on Abused Children ..............................................378
i. Abuse of Vicky and Punishment of Primary Abusers....................388
ii. Testimony........................................................389
a. Psychologist...................................................389
b. Parents.......................................................396
c. Punishment of Primary Abusers .................................404
G. Events while Defendant Awaited Sentence ................................406
i. Education, Employment, and Treatment..............................407
ii. Bail Revocation Hearings...........................................407
iii. Mental Health Evaluations..........................................408
a. New York Center for Neuropsychology & Forensic Behavioral
Science Report...............................................408
b. Stutman Report................................................409
c. Bureau of Prisons Evaluation....................................411
d. Hamill Report.................................................411
e. Barr Report...................................................412
f. Prentky Report................................................414
g. Sachsenmaier Report...........................................415
h. Leonhard Treatment...........................................416
H. Hearings on Protection of Public and Treatment of Defendant ...............417
i. Probation.........................................................418
ii. Dr. Meg Kaplan ...................................................418
iii. Dr. Susan Sachsenmaier............................................430
iv. Dr. Robert Prentky................................................433
I. Risk Assessment.......................................................445
i. Use of Static-99 ...................................................446
ii. Universe for risk assessment and bias................................449
iii. Coding...........................................................453
iv. Development of Risk Assessment in Sentencing Generally...............460
J. Bureau of Prisons Program For Sex Offenders.............................466
i. Description........................................................466
ii. Trip of Court to Inspect Programs...................................476
III.Law 476
*347 A. Statutory History......................................................476
i. Federal Sentencing Scheme.........................................476
ii. Mandatory Mínimums..............................................478
iii. Child Pornography Legislation and Guidelines.........................478
iv. Judicial Interpretations.............................................480
v. Public Policy Concerns .............................................484
vi. Statute: Distribution of Child Pornography............................486
B. Constitutional Issues ...................................................487
i. Separation of Powers...............................................487
ii. First Amendment Exceptions........................................487
iii. Fourth Amendment................................................487
iv. Irrationality.......................................................487
v. Cruel and Unusual Punishment......................................490
a. Proportionality.................................................491
b. Excessive Child Pornography Incarceration Terms.................494
c. Juvenile Limits................................................495
d. Science Supporting Immaturity Exception.........................496
1. Studies....................................................496
2. Testimony.................................................502
e. Unconstitutionality as Applied...................................506
IV. Application of Law to Facts .................................................511
V. Conclusion................................................................519
A. Appendix A: Tour of Federal Medical Center Devens.......................520
B. Appendix B: Internet Technologies Providing Access to Child
Pornography........................................................524
C. Appendix C: State Statutes on Juvenile Sentencing for Child
Pornography........................................................526
D. Appendix D: Bureau of Prisons Sex Offender Programs.....................566
E. Appendix E: Memorandum by Chief U.S. Probation Officer..................594
I. Introduction
Defendant, C.R., pled guilty to “distribution” of child pornography he had obtained using a computer. Others shared his still and video images through a networking program. Access to the pictures he acquired were alleged to constitute electronic “distribution” of child pornography. See 18 U.S.C. § 2252 (a)(2).
As indicated in Part II.D.iii, based upon defendant’s allocution, he has not committed acts necessary to establish the crime charged. The guilty plea would not have been accepted if not for the strong urging of defendant and his counsel.
Defendant was nineteen years old at the time of the offense. He started using computers to view this material when he was fifteen.
C.R. is subject to a statutory minimum prison sentence of five-years, with a maximum of twenty years, and a Guidelines range of 68-78 months. There also must be imposed what may amount to lifetime control on defendant as a sex offender. See 42 U.S.C. §§ 16911 , 16915(a)(1) (fifteen years for lowest risk federal offenders); § 16915(b) (possibility of early termination for federal offenders after ten years); N.Y. Corr. Law § 168 -h(l) (twenty years for lowest risk offender).
As applied to this defendant and this case, the statutory minimum five-year sentence of imprisonment is unconstitutional. It is cruel and unusual. See Part III.B.V, infra. The Guidelines sentence is excessive.
Imposed is a thirty-month sentence for intensive medical treatment in prison. *348 This will be followed by long-term post-prison curative therapy and strict control for many years under supervised release by the court’s probation service. See Part IV, infra. Society will be best protected by this regimen rather than by a longer term of imprisonment; C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress’s strongly expressed preference for incarceration in these cases, the court would have imposed a long-term of supervised release with medical treatment outside of prison.
Further general or specific deterrence is not required. The adult who abused the child in one of the abhorrent known victim child pornography video series found on defendant’s computer was sentenced to fifty years in prison. Another adult who stalked and harassed this child with pictures of her abuse was sentenced to twenty years in prison. See Part II.F.ii.e, infra.
This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.?
Widely shown video images are involved. While “[a]ny social problem that exists at the intersection of adolescence, sex, technology, and criminal law compels strong reactions from all sides ... it often results in sensationalism and oversimplification of complex and multifaceted issues making it more difficult to discuss the problem rationally and productively.” Mary G. Leary, Sexting or Self-Produced Child Pornography? The Dialogue Continues— Structured Prosecutorial Discretion within a Multidisciplinary Response. 17 Va. J. Soc. Pol’y. & L. 486, 487-88 (2010). Sexual development is complex and subtle. It varies widely with the individual. The law will cause serious and unnecessary harm to adolescent defendants by applying a mechanical and unnecessarily harsh sentencing scheme to address the broad range of culpability and circumstances involved in child pornography crimes.
Part II of this memorandum discusses the facts of the case, including an overview of C.R.’s childhood, his sexual history, the instant offense, and his guilty plea. The history of child pornography is briefly described. An explanation of the child pornography industry, its content, and its viewers provides context for the instant offense. Following is an examination of the real and perceived relationship between viewing such material and acting out by abusing children physically. The harm in defendant’s use of child pornography flies is outlined in Part II.F, with a discussion of the punishment of those who create or use videos to harass the victim detailed in Part II.F. i — ii. Particular attention is given to the harms caused to a known victim widely shown in the internet “Vicky Series.” Described is the distress of “Vicky,” her mother, and step-father; the criminal prosecution and sentence of the perpetrator of her abuse, her biological father; and the conviction and sentence of an individual who stalked “Vicky” over the internet. Aso covered in Part II are C.R.’s activities while awaiting sentence, including his education, employment, and mental health treatment; bond revocation hearings; and the extensive evaluations he has undergone. See Part II.G, infra.
Applicable law and its premises are discussed in Part III. Statutory history is explained in subdivision A, covering the federal sentencing scheme, mandatory minimum prison terms, child pornography *349 legislation, and relevant sentencing guidelines. Explicated are judicial interpretations and public policy concerns.
Part III.A.vi covers the specific statute at issue, 18 U.S.C. § 2252 (a)(2), distribution of child pornography. Discussed in Part III.B are the constitutional arguments questioning the imposition of a uniformly applied five-year mandatory minimum sentence of imprisonment. It begins with consideration of separation of powers. Also explored are First Amendment exceptions for child pornography, Fourth Amendment concerns, and lack of a rational basis for a five-year mandatory minimum sentence for non-commercial distribution of child pornography. These approaches to the constitutional issues are rejected as grounds for finding that the mandatory statutory minimum violates the Constitution. See Part III.Bi-iv.
The next section, Part IILB.v, scrutinizes the Eighth Amendment’s proscription against “cruel and unusual punishments.” The constitutional “cruel and unusual” bar requires that the mandatory five-year statutory minimum not be applied in the present case.
Set out in Part IV, Application of Facts to Law, are the guidelines calculation and the reasons for a non-guideline sentence. Various sentencing options are summarized including: (1) prison for many years, (2) a thirty-month prison term with full treatment and completion of a program for control of sex offenders at The Federal Medical Center Devens prison (“FMC Devens”), and continued long-term strict control and treatment outside of prison; and (3) a non-incarceratory probation sentence with outpatient mental health and sex offender treatment. Adopted in the Conclusion, Part V, is the intermediate position, (2). This solution provides the fullest protection of the public as well as the rehabilitation of the defendant.
Young C.R. is far from perfect — a characteristic shared with many. But this is not a reason for destroying him in prison.
To better reflect the nuances in relevant sentencing vectors and their interaction in a case such as the present one, there has been set out below at greater length than is usual in a sentencing memorandum large portions of the transcripts of testimony and other material informing the court’s reasoning. There were extensive evidentiary hearings with testimony from a dozen expert witnesses in the fields of child sexual abuse; online child pornography; risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain development.
The court visited FMC Devens to observe its program of psychological treatment of sex offenders. See Appendix A and D.
Received in evidence was a comprehensive record of the defendant’s background and his mental health. The crimes of receiving, viewing, and distributing child pornography and the harms created were explored. Investigated was the nature of adolescent brain development and its impact on decision making, judgment, and impulsivity. Defendant’s potential risk of recidivism and the methods of predicting dangers are outlined in Part II.I, infra.
II. Facts
A. Defendant’s Childhood
The defendant, now twenty-one, was born the only child to parents who separated when he was under one year old. Shortly thereafter they were divorced under bitter circumstances. Presentence Investigation Report (“PSR”) ¶¶ 44, 46. His biological mother, formerly a successful fashion designer, became a cocaine addict *350 and exotic dancer. Id. at ¶¶44, 46, 49 . She lost custody of defendant after a confrontation with local police and a Child Protective Services investigation. Id. at ¶ 46 . C.R. had little to no contact with his biological mother throughout his early youth; he recalls only a single encounter with her when he was eight, followed by a handful of visits and unfulfilled promises to see him during his early teenage years. Id. at ¶¶ 49, 71 .
After his parents divorced, C.R.’s thirty-two year old father and his father’s twenty-two year old girlfriend established a joint residence. Id. at ¶ 51 . The couple married after living together for three years; they had one child, a daughter. Id. C.R. and his young stepmother developed a close relationship. Id. at ¶ 51 . She was the primary caregiver and involved parent. Id. When C.R. was fifteen, he discovered her in bed with a male family friend. Id. at ¶ 52 . The extramarital affair continued, and the marriage ended under nasty tensions. Id. The defendant’s half-sister and stepmother then moved out. See id. at ¶ 51 . C.R. continued to regard his stepmother as “the most important and nurturing person in his life.” Id. at ¶ 71 .
Except for one failed semester at college and a short stint with his biological mother, the defendant always has lived with his father and this parent’s female cohabitating companion of the moment. See id. at ¶ 53, 54 .
Following indictment, C.R. was ordered to comply with restricted home confinement rules. He continues to live in his father’s apartment, where this parent shares a bed with a twenty-four-year-old woman. Id. at 54 . C.R. sleeps in a curtained-off portion of the dining room. Id.
The defendant has worked part-time since his middle teens, most recently behind the counter of a donut shop. Id. at ¶¶ 91-97 . He has never been financially independent. Id. at ¶ 91 ; see id. at ¶ 54 . Intermittently he has attended college. Id. at ¶ 85-87 ; see also Part II.G.i, infra. Since court supervision began his college studies have been steady and satisfactory, and he has been receiving drug and sex offender therapy.
Now twenty-one years old, the defendant was evaluated shortly after his arrest, when he was nineteen, as “grossly naive.” Id. at ¶ 70 . Expert mental health evaluations confirmed his continued neurological, psychiatric, and emotional immaturity. See infra Part II.G.iii. Physically, he is slight, with the facial appearance of someone in his mid-teens.
At age fifteen — about the time his father and stepmother’s connubial relationship was severed — C.R. began smoking marijuana and drinking alcohol. One year later a friend introduced him to child pornography on the Internet, and he began watching the material with male and female peers. See PSR at ¶¶ 26, 68, 79, 80. Drug use increased markedly over the next few years. See id. at ¶¶ 79-84 . By age eighteen, C.R. smoked marijuana “most waking hours.” PSR at ¶ 79. In addition, he started abusing prescription medications, including antidepressants, sleeping pills, and narcotic painkillers; and he ingested Ecstasy, LSD, and hallucinogenic mushrooms. Id. at ¶ 81 . For three years before he started looking at child pornography on his computer, C.R. spent hours each week downloading and viewing adult pornography, which he encountered for the first time when he saw it online at age thirteen. Id. at ¶ 68 .
Over the next three years the defendant collected more than a thousand child pornographic still images and over a hundred such videos, in addition to substantial adult pornography. See id. at ¶ 68 . Prepubescent and pubescent boys and girls mainly *351 between the ages of ten and seventeen were shown engaged in sexually explicit activities with each other and with adult males. See id. at ¶¶ 9,16, 68 .
C.R. describes viewing child pornography out of curiosity and looking at the images and videos of prepubescents for purposes of sexual gratification. Id. at ¶ 68 . His downloading of child pornography appears to have occurred only when he was high on drugs. Id. at ¶ 26 .
B. Sexual History
The defendant is unmarried, has no children, is not dating, and has never maintained a long-term romantic association. See id. at ¶ 57 . His longest intimate relationship lasted for three months, with a girlfriend of his own age. See id. at ¶ 68 .
Defendant’s first overt sexual encounter involved physical contact with his paternal half-sister — then eight years old — when he was fifteen. Id. at ¶ 11 ; see id. at ¶ 68 . The incident occurred during a family vacation and involved touching of sexual organs. Id. at ¶ 11 ; see id. at ¶ 68 . The father — with custody of his son and a temporary visit from his daughter — had placed the children in the same bed in a hotel room. Id. at ¶ 11 .
Revealed during plea negotiations were two other incidents between these two children. One involved mutual touching when C.R. was sixteen and his half-sister was nine. Id. at ¶¶ 11 . The other entailed oral-genital contact when she was eleven; he was eighteen and home from college. See id. at 14 . She is now thirteen years old and he is twenty-one. See id. at ¶ 51 .
The defendant’s half-sister now resides with her mother, the defendant’s former stepmother. Id. at ¶ 51 . At this parent’s request, a protective order barring contact between the half-siblings was entered by New York State Family Court. See id. at ¶¶ 21, 61 . No criminal charges were based upon the incidents. The mother of the half-sister “had no prior impression of any possible abuse of [her daughter], and she did not think that the defendant had any sexual or emotional problems” until they were revealed during the present criminal prosecution. Id. at ¶ 20 .
C.R. describes having limited sexual encounters with peer males from the time he was sixteen through nineteen years. Id. at ¶ 68 . Between ages seventeen and eighteen, he interacted in a sexual manner with adults online, on occasion using a web camera. Id. At age nineteen, he had face-to-face sexual interactions with a forty-year-old man after meeting him online. Id. at ¶ 9 . The defendant denies meeting with children online, in a sexual manner or otherwise. Id. at ¶ 68 . First coitus occurred when the defendant and a peer female were eighteen. Id.
A history of engaging in sexual relations with individuals two to four years his junior was revealed. Sexual activity included mutual touching with a fifteen-year-old boy, mutual touching and oral contact with a fifteen-year-old female, and mutual touching with a sixteen-year-old female. Id. These incidents occurred when C.R. was eighteen and nineteen. See id.; ¶ 12.
The defendant’s sexual orientation appears still to be developing. It has been evaluated as “fluid” and “malleable.” Id. at ¶¶ 67, 73 .
C. Instant Offense
The offense for which C.R. is being prosecuted occurred when he was living for a short time with his biological mother while attending community college in Queens, New York. See id. at ¶ at 71. She had met a man thirteen years’ her junior at an addiction recovery program; they married. Id. at ¶ 50 . The couple had a daughter, now six years old. Id. at ¶ 50 . *352 Household dynamics were turbulent. Id. at ¶ 71 . The biological mother and C.R. had a difficult relationship, and he never developed a closeness with his stepfather. Id. To avoid confrontations, C.R. would return home from school late at night after everyone was asleep. See id. at ¶ 71, 81 . High on marijuana and, occasionally, other drugs, he would download and view child pornography on a computer in the living room where he slept. See id. at ¶¶ 26, 71 .
During this period an undercover Federal Bureau of Investigation agent selected and transferred a child pornography file from defendant’s computer, at the agent’s initiative, through a peer-to-peer electronic file sharing program named “Gigatribe.” Id. at ¶ 5 . It provides for sharing of images and videos among a closed network of “buddies.” See Affidavit of Special FBI Agent Thomas Thompson (“Thompson Aff.”), Docket Entry 1, at ¶¶ 7-9, Jan. 29, 2009 (describing mechanics of Gigatribe and other peer-to-peer programs); see also, e.g., United States v. Griffin, 510 F.3d 354, 356 (2d Cir.2007) (describing mechanics of a similar program called “Ka-Zaa”); United States v. Ladean, No. 09-CR-40021, at *1, 2010 WL 1427523 (D.Mass., Apr. 7, 2010) (describing mechanics of Gigatribe). The systems used by defendant operate as follows:
Peer-to-peer file sharing programs, such as Gnutella, Limewire, KaZaa Lite, GigaTribe- and Emule, allow its members to share all types of digital media, including images, movie clips and music, at no cost. Peer-to-peer members must download the compatible software from the Internet to become part of the network; thereafter, they can both post (upload) and obtain (download) digital files from other members of that particular network. Since such peer-to-peer networks have millions of digital files that can readily be shared at any time, its members must conduct a search for a particular type of file. The users must type in a “keyword” to find the specific materials they are seeking. Once the keyword is entered, the shareable contents that contain the specified keyword in their title or description are then displayed. The users must manually select which particular digital files they want to download. GigaTribe has the attribute of being a private, peer-to-peer file sharing community, with new users needing an emailed invitation from a preexisting member to join, and if a user wants to access another user’s files, the transaction takes place privately between the users’ computer systems, without GigaTribe or another third-party database maintaining evidence or a history of their file sharing.
See PSR at ¶ 4; see also Appendix C, Internet Technologies Providing Access to Child Pornography, attached. Defendant used Gigatribe for only the thirty day “free” period offered by this service. Id. at ¶ 9 .
The FBI agent observed a user, later identified as C.R., with the username “Boysuck0416.” C.R. had created a “mini-profile” on the site listing his true gender and date of birth. See PSR at ¶ 5. After joining the defendant’s “buddy list,” the FBI agent viewed and downloaded ten videos and one still image of child pornography from the “added music” folder of the defendant’s computer. Id.; see also Thompson Aff. at ¶ 9. It is this downloading by the FBI from defendants’ files that is the basis for the present prosecution.
Based on the information obtained by the FBI, the government executed a search warrant of defendant’s stepfather’s and biological mother’s home. PSR at ¶¶ 5-6. Seized by the agents were two *353 computers used exclusively by defendant. Id. at ¶ 7 . C.R. admitted to downloading and viewing child pornography videos on both computers through the Gigatribe website, and to trading videos and digital images via Limewire, another peer-to-peer program. Id. at ¶ 8 .
C.R. had accessed files from between five and eight fellow Gigatribe users and shared his materials with ten to twenty other users. Id. at ¶ 9 . The defendant never paid or charged for any child pornography. Id. at ¶ 26 . Nor is there any indication that he used the Internet or any sort of pornography to meet or engage with any child, sexually or otherwise. “There appeared to be no child pornography material involving either very young (under 5 or 6) children, or scenes of bondage, sadism or violence.” Id. at ¶ 16 .
D. Guilty Plea
Defendant does not raise constitutional or other challenges to the procedures by which evidence was obtained against him. On September 16, 2009, the defendant, then twenty years old, appeared before a magistrate judge and pled guilty to Count One of a five-count indictment. Pleading Hr’g Tr. 3, Sept. 16, 2009. Charged in the count was that on November 17, 2008, the defendant distributed a video that contained child pornography in violation of 18 U.S.C. § 2252 (a)(2). See Indictment, Docket No. 11. It was explained to defendant that a mandatory minimum five-year sentence was applicable, with a possible supervised release term of life and registration as a sex offender. Hr’g Tr. 16, Sept. 16, 2009.
Although the government considered pursuing only possession charges — which would not have triggered the minimum — ■ that option was abandoned after defendant voluntarily revealed his sexual history during plea negotiations. See PSR at ¶ 11.
As indicated below, Part II.D.iii, the effect on one victim, “Vicky,” of continued use of pictures of her abuse by many viewers was seriously adverse. See also, e.g., Gov. Exhs. 8-1, 8-2 (effect on other abused children who were known victims). C.R. was one of the many thousands who viewed the Vicky series. Whether a sentence of many years imprisonment for passive viewers will improve the victim’s life is dubious. See generally Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. of Mary L. Rev 1, 73 (2010).
i. Interpretation of the Statute— 18 U.S.C. § 2252 (a)(2)
Serious questions were raised sua sponte by the court as to whether C.R.’s conduct constituted “distribution” within the meaning of 18 U.S.C. § 2252 (a). The statute requires that the defendant “knowingly” “distributes” a “visual depiction of a minor engaged in sexual conduct.” See 18 U.S.C. § 2252 (a); Sentencing Hr’g Tr. 9, May 10, 2011. Dictionary definitions establish that “to distribute” is “an active not a passive verb.” Sentencing Hr’g Tr. 9. “To receive,” by contrast, has been interpreted as passive. See Discussion of charges of receiving child pornography in Part II.E.L “[Rjeceipt can be satisfied arguably by opening your computer intending that a visual signal come into the computer. That’s receipt. Because you actually intend to, and actually receive, that’s enough. But with respect to distribution, just opening the computer seems to me not enough.” Id. at 11 .
“Distribute,” the material element, has two subdivisions. “One, he intends to distribute, he designs, intends; and two, he actually succeeds in distributing a communication, namely the visual depiction;” there must be “a communicator, namely the defendant [ ] and a communicant, somebody who actually received it.” Sen *354 tencing Hr’g Tr. 12 (statement of the court). In this case the evidence has established that there was a communication and a communicant who received it. The issues are whether the defendant intended to, and did, communicate. The following colloquy between the court and the defendant shows that for the purposes of the plea, C.R. 1) did not intend to communicate, and 2) did not communicate. Both are required for conviction.
COURT: Did you know that this file was being downloaded from your computer?
DEFENDANT: At the time that the download was occurring I actually was not home....
COURT: Did you find out later that it had been downloaded?
DEFENDANT: Yeah, I did.
COURT: When?
DEFENDANT: When I came home from school. But I had left my computer on.
COURT: Okay. Did you intend that the file be downloaded by this person? DEFENDANT: Your Honor, no, I did not. That site requires you to share with other people, as the agent said, but my intentions were not to distribute but more to just receive.
COURT: Did you intend that anybody else, a specific person or general person receive it?
DEFENDANT: No, it was not my intention.
COURT: There is a serious question here. The government agent downloaded without the defendant knowing or intending that he do so. The defendant says he did not intend to deliver. He did not deliver. The government agent reached into the computer and took the image. The defendant did not intend to deliver, he says. If he is telling the truth, he did not violate the statute.
Sentencing Hr’g Tr. 16-17.
Congress did not design the statute for purely passive sharing of the kind this defendant [says he] engaged in with his state of mind. Given the seriousness of the consequences, mandatory five-years in federal prison, it cannot be said that Congress designed the statute so that the mere opening of one’s computer, under these circumstances as described by the special agent, would require at least five-years in prison.... The government must prove both that one, the defendant intended some person to receive the image. Here the defendant has said in court that he did not so intend, but that he joined to receive not to transmit. Two, that he actively transmitted the material to at least one person who received it. The situation here is that the defendant says that his computer received [the request for delivery] while he was not home. That is not sufficient under the statute. The material elements of the statute have not been admitted. C.R. stated that he was not home when the file was transmitted from his computer to the undercover government agent’s computer, at the agent’s request. He also said he did not intend to transfer or distribute files to other individuals; the intention was to obtain, not to transmit child pornography.”
Sentencing Hr’g Tr. 21-22 (statement of the court).
The defendant explained that his goal was to receive child pornography, but in achieving that goal he knew that he had to make his child pornography files available to others. “There is an enormous legal difference between those two mental states *355 [making available and giving or distributing].” Id. at 22 . After examining the statute and dictionary definitions of the material term “distribute” the court interprets the statute to require both 1) an active intention to give or transfer a specific visual depiction to another person and 2) active participation in the actual delivery,
ii. Pressures on Defendants and Defense Counsel to Plead Guilty
Defendants and their counsel face enormous pressures when deciding whether or not to plead guilty to a charge such as the present one. In this case there is the looming threat of a lengthy guidelines sentence should the defendant go to trial; the difficulty of obtaining an acquittal under the less onerous definition of the crime relied upon by the prosecution — -joining a file-sharing group and accepting an “invite” from another individual to be his “buddy,” which allowed that “buddy” to select a child pornography file from defendant’s computer and transfer it to his own computer — and the threat of a superseding indictment with an “advertisement charge” carrying a fifteen year mandatory minimum. All of these factors have a significant influence on the defendant’s decision to plead. In addition, the delay in serving the sentence while appeals are prosecuted would impede defendant’s ability to move on with his life and put the case behind him.
At his allocution, C.R. stated “[i]n November of 2008,1 had an image of a minor engaged in sexual activity on my computer. Through a computer program, I permitted another individual to download this image from my computer. This image is the image identified in Count 1 of the indictment.” Pleading Tr. 24, September 16, 2009. C.R. did not express an intention to transmit the files he located to other individuals.
C.R. was asked again by the court at the sentencing hearing if what he said in his pleading before a magistrate judge was truthful and voluntary, and if he still wished to plead guilty. See Sent’g Hr’g Tr. 8, May 10, 2011. He did not express any intention to distribute child pornography. Id. at 16 . Defendant was told that if his case went to trial, the court would be prepared to inform the jury that the statute carried a mandatory minimum sentence of five years. See Sentencing Hr’g Tr. 24-25, referring to United States v. Polouizzi, 564 F.3d 142, 162 (2d Cir.2009) (“Even assuming arguendo that the district court had discretion to give such an instruction, it was certainly within the trial court’s discretion to decline to instruct the jury on the mandatory minimum sentence.”). He was also informed that any evidence of sexual contact with his half-sister would be subject to an in limine motion and likely would be excluded under Federal Rules of Evidence 403. See Sentencing Hr’g Tr. 30.
A Tentative Draft Memorandum and Order had been issued in March, 2011 outlining the proposed sentence. C.R. was aware, thus, that he would be highly likely (even after appeal) to receive a term of incarceration no longer than five-years, whether he pled or went to trial. Id. at 23-24.
After the court explained all of these circumstances, C.R., after advice from his counsel, still insisted on pleading guilty. Defense counsel explained the difficult considerations the defendant faced:
MR. TALKIN: Supposing that we do go to trial and ... this distribution issue is a legal, technical issue, and certainly we would make a Rule 29 motion and we would hope that the court would grant it....
*356 THE COURT: That’s the way it has to be analyzed at this stage. Are there equitable reasons for accepting a plea to a crime the defendant does not admit he committed?
MR. TALKIN: So if we are granted a Rule 29 and there’s an appeal in this case, and it winds its way through the Second Circuit, and the Second Circuit makes a decision where they say ... We’re going to send this back but we are going to send it back to a different court. If that happens ... then we cannot take to the bank that 60-month sentence.
THE COURT: Excuse me. The general view in this court in cases like this is that a five-year maximum would apply in this ease based upon consultations I have had with the judges.
MR. TALKIN: Judge, we as lawyers cannot rely on that for a second.... [A]ll of us do practice in this courthouse and it’s our belief that there’s a reasonable possibility that other courts in this building would give more than 60 months. And there’s another important consideration here. I believe, and it’s always been the gorilla in the room, that if we decide to go to trial, a superseding indictment can come through with higher mandatory minimums.
THE COURT: Which higher mandatory minimum?
MR. TALKIN: The 15-year advertising mandatory minimum. Again, we’ll get into a legal battle about whether it’s proper for the government to bring it, we’ll get into a legal battle about whether they can make out the elements of that crime. But, again, taking a step back and being an advocate for nobody else in this world but C.R., it is in his best interest — I, as his attorney, helping him make decisions about his life that are going to affect this young man’s life for the rest of his life, a long life hopefully, it is our opinion that those risks I just detailed to the court are nowhere close to mere taking for a trial that we believe, knowing the evidence, unless the Rule 29 is granted, it’s a very — it’s a high, high, high probability of conviction. So what happens here is, we get into this appellate issue and then we’re relying on the wheel of where this goes, or the Chief Judge, depending on what the procedures are, to decide which judge gets this case and how his life is determined. I don’t think I’m doing my job if I let that happen.
Sentencing Hr’g Tr. 26-28. The government agreed with defense counsel. It added, “[t]he government believes the defendant has allocuted to the offense. He knowingly distributed child pornography files to another individual. I think, your Honor, also [there is] another consideration ... it appears from the government’s perspective that this defendant wants to accept responsibility for the offense from a moral standpoint ... that is the perception the government attorney has ... observed over the course of these last two. years. He’s clearly admitted to it on multiple occasions and it seems like something that he wants to do.” Id. at 30.
The court has authority to reject a plea under Federal Rule of Criminal Procedure 11. See Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971) (“There is of course no absolute right to have your plea accepted.... A court may reject a plea in exercise of sound judicial discretion.”).
C.R. had three competent and distinguished members of the bar representing him who informed him of his rights and advised him based on what they believed were his best interests. A factual basis for the plea was established because there is substantial evidence to support each ele *357 ment of the crime. The court finds for the present purposes that defendant’s statements are truthful. It does not find that he admitted to committing the crime charged or defined by this court. Yet a jury could reasonably find that defendant was not truthful when he testified that he did not intend to distribute his files to another individual.
Balancing the equities in the case, it is appropriate to accept a plea even if the defendant does not concede all material propositions of fact. See North Carolina v. Alford, 400 U.S. 25, 37-38 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970) (court does not commit constitutional error in accepting a guilty plea despite defendant’s claim of innocence as long as there is a strong factual basis for the plea”); Fed. R.Crim. Pro. 11(b)(3) (Determining the Factual Basis for a Plea).
Relying on defendant’s thoroughly considered decision to plead guilty, the strong belief of defense counsel that it is in the defendant’s interest to do so, the prosecution’s observations that the defendant wants to accept responsibility for the offense, the concurrence of his relatives— father and grandmother — who have stood by him, and the defendant’s own high intelligence, the court accepts the plea. It is the defendant’s, not the court’s, decision on this issue that should prevail in the absence of the most unusual circumstances,
iii. Content of Defendant’s Files
This was not a victimless crime. As revealed by testimony and other information, the child victims suffer not only from the initial physical sexual abuse of their tormentors, but also from the knowledge that their degradation will be repeatedly viewed electronically into near perpetuity by a large audience.
While defendant pled guilty only to Count 1 of the indictment, distribution on November 17, 2008 of filename “!NEW! (pthc) 2007 Tara 8 yr — Tara kutje (pedo) (ptsc).mpg” he had other such files on his computers which were available to others. The testimony of Special F.B.I. Agent Thomas Thompson indicates the scope of defendant’s files:
Q Did there come a time when you conducted an examination of the defendant’s two computers that were seized during the execution of the search warrant?
A Yes.
Q What did you discover as a result of your examination?
A At least two hundred images containing child pornography and, approximately, one hundred video files containing child pornography.
Q What type of child pornography did the defendant have on his two computers?
A The majority involved boys between the ages of ten and twelve, engaged in sexual acts and also included some younger boys and girls.
Q What sort of sexual acts were portrayed in the videos of child pornography?
A Oral sex, anal sex, regular penetration.
Q Was one video entitled: PT 101 103 FO 3 CJ dash Gay PTHC, dad pops his eight YO boy’s butt Cherry dash pre-teen Gay kiddie incest dot ADI?
A Yes.
Q What does that video depict?
A Adult male anal penetrating a boy, approximately eight years old.
Q Did you send forensic copies of defendant’s computer to the Criminal Division of the Department of Justice?
A Yes.
*358 Q Why did you do that?
A For further analysis.
Q Did you send images and video files obtained from the defendant’s computer to anyone else?
A. Yes.... NC-MEC, the National Center of Exploited and Missing Children.
Q What does NC-MEC do with the images and video files that are sent to them?
A They compared them to, at that time, that base of known images, video files containing known victims of child pornography.
Q They are able to identify known victims based on the images and videos that you send to them?
A Yes.
Q Do they ever create a report that identifies the known series on a computer that are seized from a computer?
A Yes.
Q Do they provide law enforcement contact information for those known victims?
A Yes.
Q What would you do with the information regarding law enforcement contact?
A I would then contact the law enforcement contact to gain additional information about the child pornography series.
Q And the known victims?
A Yes.
Q What is a known victim series?
A A known victim series contains at least one child that was sexual abused, either on an image or video tape that has been identified by law enforcement.
Q When you say identify, what do you mean by that?
A They know it’s a real person.
Q Did the defendant’s computer contain images and videos of any know victim series?
A Yes.,
Q How do you know?
A From the report that NC-MEC sent back to me.
Q How many known victim’s series were found on the defendant’s computer?
A At least 14.
Q Did NC-MEC send you law enforcement contact information for those 14 known victim series found on the defendant’s computers?
A Yes.
Q What, if anything, did you do with that information?
A I then contacted the law enforcement contacts.
Q And what did you do after you contacted them?
A I obtained additional information, including the age of the victims, the number of victims involved and the time frame that abuse occurred.
Q Did you ask for permission to access other information about the series?
A Yes.
Q Did NC-MEC also provide you— provide information in more detail, affidavits containing additional information about those 14 victims in the known victim series found on his computers?
A Yes.
Q Does that NC-MEC report included a detailed description of the child sexual abuse that is depicted in the *359 videos and images found on the defendant’s computers?
A Yes, depicts the series, gives detailed description of the child abuse in the series.
Q Does it include information about circulation statistics for those particular known victim series?
A Yes.
Q Can you please explain to the Court what is meant by circulation statistics?
A Those statistics are given — based upon law enforcement like myself, we come into contact with the child pornography that we send it down to NC-MEC that would count as one report or one instance of — that series being reported to NC-MEC.
Q I’m showing you Government Exhibit One, which has been received into evidence.
Q Do you recognize the documents?
A Yes.
Q What is that?
A This is the NC-MEC affidavit that was provided to the government.
Q Based upon the information that you collected from NC-MEC and law enforcement contacts, did you create a summary chart for this hearing?
A Yes.
Q I’m showing you what has been entered into evidence Government Exhibit 2. What is that?
A This is a summary chart that I created based on the information that I received from NC-MEC and the law enforcement contacts associated with this series.
Q What information does that summary chart include for each known series?
A Contains series name, the description of the child abuse in the series, number of known victims in the series, age of victim or victims at the time of abuse, the time frame of the abuse, where the abuse occurred, and how many reports regarding the series were submitted to NC-MEC.
Q Can you please read to the Court the time frames of abuse for some of the series listed in Government Exhibit 2?
A Sponge Bob or Sponge B occurred in 2003 and [sic] 2009.
Q What sort of abuse is depicted in this Sponge B series?
A The series contains images of prepubescent boys engaged in a series of sexual acts including oral sex, masturbation and anal penetration of the child.
Q That series was found on the defendant’s computer?
A Yes.
Q Can we please move to the TARA series....
Q What is time frame of abuse for the TARA series?
A 2003 to 2008.
Q Would you please explain to the Court what sort of sexual abuse if reflected in the TARA series?
A The series contains images, videos files of a prepubescent female child engaged in graphic sexual acts with adult offenders, including oral sex, masturbation, foreign object penetration, rectal penetration and anal penetration.
Q What is the time frame of abuse depicted in Dalmations?
A 2002 to 2004.
*360 Q And what sorts of abuse is depicted in Dalmations?
A The series contains images and video files on eleven prepubescent male children engaged in sexual acts with each other and male offender, including oral sex and anal penetration.
Q What is the age of the youngest victim depicted in this Dalmation series?
A Seven.
Q And that series was found in the defendant’s computer?
A Yes.
Q What is the age of youngest victim depicted in the Sponge Bob series?
A Six.
Q And the age of the youngest victim depicted in the TARA series?
A Five.
Q .... The time frame of the abuse for the Vicky series?
A 2000 to 2001.
Q What is the age of the victims at the time of that abuse?
A Between ten and eleven.
Q And what is depicted in the Vicky series?
A It contains still images and video files of prepubescent children engaged in a series of extremely sexual acts, include oral, masturbation, genital penetration and foreign object genital contact. The files contain depictions of bondage.
Q What is the age of the youngest victim abused in the Helen series?
A Ages of four and eight.
Q And what was depicted in the Helen series?
A Contains images of prepubescent female children engaged in graphic sexual acts, oral sex, sexual intercourse and anal penetration.
Q And that series was also found on the defendant’s computer?
A Yes....
Q Special Agent Thompson, of the known victim series that you just described, how many have associated victims impact statements?
A Three.
Q Which ones were found on file on the defendant’s computer?
A Dalmation, TARA and Vicky.
Hr’g Tr. 21-28, Nov. 8, 2009.
iv. Impact on Victims
The impact on victims of viewing their abuse is substantial. See Part ILF., infra. The testimony of the government agent continued as follows:
'Q Could you please explain to the Court what a victim impact statement is?
A A victim impact statement, either the victim or a relative of the victim describes the impact that the production of child pornography has impacted their lives.
Q Did you contact the law enforcement agencies in the district responsible for coordinating the use of the victim impact statements associated with those three series, Dalmation, TARA and Vicky?
A Yes.
Q Did you obtain permission to use those victim impact statements?
A Yes.
Q Are the victims in the TARA and Dalmation series here to testify today?
A No.
*361 Q Do you have permission to read their statement into the record?
A Yes.
Q How many victim impact statements are associated with the TARA series?
A One.
Q I’m showing you what has been admitted into evidence as Government Exhibit 3. Do you see that?
A Yes.
Q Do you recognize that document?
A Yes.
Q What is it?
A This is the impact statement related to the TARA series given by the victim’s mother.
Q Can you please read that victim impact statement into the record.
QUESTION: How were you or members of your family affected by this crime? You may continue your statement on an additional sheet of paper if you wish?
ANSWER: On behalf of the victim I would like to submit a statement. This child has been a bright light to me, other family members and the community. She is very smart, determined child. Excelling in just about everything she involves herself, school, art, cheer, tennis, and a most obedient child, always wanting to please others. This defendant has participated in exploiting this innocent child into a dark side of life that is totally unacceptable. She is in weekly counseling and has begun to have screaming nightmares sometimes, two, three times a week. Her rights as a human being have been totally violated and I do not know how this will affect her in the long run physically and/or emotionally. Her disclosures to me since December have been very little and she acts like nothing ' is different. But her life has changed. She was uprooted from her elementary school to another one, to protect her from malicious comments, and possibly to a new school system next year. She cannot just go around unescorted for our fear that someone else may know the situation and prey on her and she cannot live in the house she grew up in because people have been watching the house, blogging about the situation and making statements about what should happen to the house and windows were broken when all this first happened. I could go on but I offer these reasons the defendant should not be allowed around children for a long time. QUESTION: Have you or members of your family received counseling or therapy as a result of this crime? Please explain?
ANSWER: Yes, the victim, her brother and I have undergone therapy. The victim is still in therapy trying to come to terms and deal with this event that she seemed to compartmentalize and place somewhere deep inside her mind so those close to her wouldn’t see it. Her brother and I, the mother, have just finished therapy to try to help us deal with this event and how it has affected the victim as well as all of us as a family. The secretive nature of this offense and all that transpired in the internet issues went along with it have been hard for her brother and me as her mother to comprehend.
THE COURT: Who is the person that violated the child? Who violated the child?
THE WITNESS: I believe it was a friend associated with the family.
*362 Q Special Agent Thompson how many victims from Dalmation series?
A Eleven.
Q How many of those victims were depicted on the images you found on the defendant’s computers?
A At least three.
Q Do you have victim impact statements from one or more — from one or more of those three victims found on the defendant’s computers?
A Yes.
Q How many victim impact statements do you have?
A These are the impact statements of two of the victims in Dalmation series. QUESTION: How old are you? ANSWER: 13.
QUESTION: What grade are you in.
ANSWER: Eighth grade.
QUESTION: Please explain briefly what led you to originally be victimized or assaulted? You could continue on another piece of paper if necessary to answer this or another question. I met him at a fair and the next I met him through my brother. Then we hangout at his house.
QUESTION: Explain how your life has been affected by having images of your victimization viewed and downloaded by other internet and knowing this is likely to continue occurring? It makes me feel to be embarrassed and I don’t like people having me on the internet.
QUESTION: What sentence would you like the judge to order for someone caught sending, receiving and possessing sexual explicit pictures of you.
ANSWER: 30 years in jail.
QUESTION: Describe any psychological or emotional long term effects that have occurred and/or you expect will continue to occur as a result of the defendant sending sexually explicit pictures of you?
ANSWER: Some people don’t forget.
QUESTION: Is there anything else you like the judge to know about how you feel as to what happened to you.
ANSWER: Torture.
Could you read the victim impact statement 4-2, which has been admitted into evidence and that is the other Dalmation victim impact statement that we have in connection with the files found on the defendant’s computer.
“QUESTION: How old are you?
ANSWER: 12.
QUESTION: What grade are you in?
ANSWER: Seven.
QUESTION: Please explain briefly what led you to originally be victimized or assaulted....
ANSWER: I met him at the fair and next year we met through a friend. Hangout at his house. He told the other kids to get us involved.
QUESTION: Explain how your life has been effected by having images of your victimization viewed and downloaded by other from the internet and *363 from knowing this is likely continue occurring.
ANSWER: Makes me feel embarrassed. Don’t really tell anybody. Don’t like to talk to police.
Hr’g Tr. 21-37, Oct. 9, 2010. The victim suggested an extreme form of punishment for viewers. Id.
Q I’d like to direct your attention to Government’s Exhibit 2. Do you have that in front of you?
A Yes.
Q Could you please read for the Court the relevant information from Government’s Exhibit 2 including the dates that the series were produced?
A Yes, Sponge Bob Series; age of victims at the time of abuse, six to eleven. Timeframe of abuse, 2003 to 2009. Tara Series, age of victim at time of abuse, five to ten. Timeframe of abuse, 2003 to 2009. Eric Series, ages of victims at the time of abuse, four to 12. Timeframe of abuse, 2003 to 2004. Football Series, ages of victims at the time of abuse, eight. Timeframe of abuse, 2004. Vicky Series, as already mentioned, timeframe of abuse, 2000 to 2001. Devon Series, timeframe of abuse, 2000 to 2001. Holy Cross Series, timeframe of abuse 2000 to 2001. The Boy Series, time-frame of abuse, 1999 to 2000. ET Series, timeframe of abuse, 1997 to 2000. Jane N Series, time of abuse, 197 to 1998. Helen Series, timeframe of abuse, 1994 to 1998. Reiz Series, timeframe of abuse, 1989.
Q And that first series you had mentioned was?
A Sponge Bob was between 2003 and 2009.
Q Would it be fair to say that there were other series that have also been produced more recently than the Vicky Series?
A Yes. And there is the Harry Series which is not in this report because I got the infotmation back too late....
Q Was the Harry Series also found on this defendant’s computer?
A Yes.
Q During the course of your investigation in this case, have your learned that the defendant was also distributing child pornography?
A Yes, the defendant was advertising, distributing, viewing and possessing child pornography in this case as well he was a hands on offender.
Q When you say advertising child pornography, what do you mean by that?
A As in my prior testimony, in his Gigatribe, in his full name field he had child pornography search terms. So he was advertising to other users on Gigatribe by putting these search terms in this field that he was sharing child pornography.
Q And those search terms are code for child pornography?
A Correct.
Q During the course of this investigation, have you learned that the defendant has kept sending sexually suggestive pictures to his half-sister?
A Correct.
Hr’g Tr. 41-43, October 9, 2010.
E. Threat.
As detailed below, see Section III.A.iii, infra, interest in child pornography as an American legislative problem emerged in the late 1970s. In response to growing public concern, Congress enacted the Protection of Children Against Sexual Exploi *364 tation Act of 1977. Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52 , 2256 (2006)). With each passing decade, Congress has increased criminal sanctions, casting a wider and finer net. See generally U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines 6-9 (2009); see also, e.g., Adam Walsh Child Protraction and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (2006) (codified as 42 U.S.C. § 16911 (2006)); PROTECT Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 (2003). Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009.
Little systematic scientific research has been published on the availability of child pornography, nature of the images, motivations of viewers, relationship of viewing to acting out, or impact of the material on children, viewers, and others. See Kerry Sheldon & Dennis Howitt, Sex Offenders and the Internet (2007) (noting lack of reliable data on these issues); Richard Wortley & Stephen Smallbone, U.S. Dep’t of Justice, Office of Comm. Oriented Police Services, Child Pornography on the Internet 12 (2006) [hereinafter DOJ, Child Pornography on the Internet] (same); Max Taylor & Ethel Quayle, Child Pornography: An Internet Crime 27 (2003); Eva J. Klain et ah, ABA Ctr. On Children & the Law, National Center for Missing and Exploited Children, Child Pornography: The Criminal-Justice System Response 2-3 (2001) (same); cf. Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, 61 Hastings L.J. 1281 , (2010) (discussing absence of empirical evidence underpinning sentencing guidelines); Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society, 29 J.L. & Soc’y 436, 443-47 (2002) (discussing lack of objective evidence in media coverage); Neil Malamuth & Mark Huppin, Drawing the Line on Virtual Child Pornography; Bringing the Law in Line with the Research Evidence, 31 N.Y.U. Rev. L. & Soc. Change 773 , 789-90 (2007) (discussing absence of objective evidence in treatment by legislature and judiciary).
The Court of Appeals for the Second Circuit has recognized a dearth of data on critical issues affecting risks, dangers, and appropriate sentences in these cases. See, e.g., United States v. Dorvee, 604 F.3d 84, 94 (2d Cir.2010) (finding error in sentencing court’s “apparent assumption” about link between possession of child pornography and risk of acting out); United States v. Falso, 544 F.3d 110, 122 (2d Cir.2008) (finding error in district court’s reliance on defendant’s history of sexual abuse of minor and “general proclivities” of child pornographers in finding probable cause to issue a search warrant in child pornography investigation). See also United States v. Stern, 590 F.Supp.2d 945 (N.D.Ohio 2008) (recognizing the difference in culpability between viewing and producing child pornography as well as the wide variation of sentences in child pornography cases).
i. History
Changing over the years and within societies has been the view of what was malign adult or child pornography; appropriate sexual relationships of gender, age and class; social mores; and criminal or other legal inhibitions. No one in authority now defends on any generally accepted moral or legal ground the sexual abuse of children for public viewing and commercial advantage. Much of the public seemingly approves congressionally adopted strong criminal sanctions against child pornography, subject to constitutional limitations. See United States v. Polizzi, 549 *365 F.Supp.2d 308, 378-86 (E.D.N.Y.2008) (historical discussion).
By contrast with concern about sexual abuse is the acknowledged necessity of excluding from the circle of condemnation proud parents’ photos and home videos of their naked infants held over their “kitchen sink” bath or of toddlers sans clothes in sunlight on the lawn (or even of not uncommon diapering scenes). Sent by mail or electronically to grandparents (or shown on wide screen or television), such images would lack the essential scienter required for criminal condemnation — libidinal, erotic, carnal, erogenous, lustful, prurient, concupiscent, malicious, etc.— even though they might conceivably be misused for malign purposes. See, e.g., Karen R. Long, Lynn Powell’s ‘Framing Innocence’ shows Oberlin rising up for an accused mother, http://www.cleveland.com/ books/index.ssf/2010/09/lynn_powells_ framing_innocenee.html, Sept. 6, 2010, (discussing prosecution and ultimate settlement of felony child pornography charges against mother for taking photographs of her eight-year-old daughter in the shower); Thomas Korosec, 1-Hour Arrest: When does a snapshot of a mother breastfeeding her child become kiddie pom? Ask the Richardson Police., Dallas Observer, April 17, 2003, available at http://www.dallasobserver.com/2003-04-17/ news/l-hour-arrest. See also Kate Taylor, Artist’s Daughter Wants Video Back, N.Y. Times, Jul. 7, 2010 (discussing New York University’s consideration, later abandoned, of acquiring films created by well-known artist Larry Rivers, depicting his two adolescent daughters, naked or topless, being interviewed by him about their developing breasts); see also United States v. Szymanski, 631 F.3d 794 (6th Cir.2011) (rejecting defendant’s guilty plea because district court failed to adequately explain the rigorous scienter requirement necessary for a conviction under the receipt of child pornography statute). “[T]he Supreme Court interpreted § 2252(a) to mean that defendant convicted of receiving child pornography must have known, not just that he was receiving something, but that what he was receiving was child pornography.” Id. at 799; see also United States v. X-Citement Video, Inc., 513 U.S. 64, 68, 70-73, 78 , 115 S.Ct. 464 , 130 L.Ed.2d 372 (1994). To avoid a Comstockian crisis of over-prosecution, good sense of prosecutors (however dangerous such reliance is in a democracy) must be assumed. See also Part ILEdii, infra, - on definition of content; Ekow N. Yankah, A Paradox in Overcriminalization 14 New Crim. L.Rev. 1, 34 (2011) (“[Ujnchecked state power threatens to criminalize so much behavior as to leave the actual exertion of power over the citizen all too often at the whim of the state.”).
Characterizations of a defendant viewer as an adult in child pornography cases tend to cluster around age fourteen. See Appendix C, State Statutes on Juvenile Child Pornography, attached (age twelve (one state), age thirteen (two states). Age fourteen (fifteen states), age sixteen (nine states), age seventeen (two states), age eighteen (twelve states), age twenty (one state), unclear (eight states)).
Bright-line age limits may fail to capture detailed social mores regarding sexual activities involving young people and use of electronic communication resources. See, e.g., Brian Stelter & Andrew G. Oosterbaan, U.S. Dep’t of Justice, Report to LEPSG on the “Global Symposium for Examining the Relationship between Online and Offline Offenses and Preventing Sexual Exploitation of Children” 7 (May 2009) (“18 as an age of consent is fairly arbitrary because each individual develops maturity at different ages....”); Shannon Shafron-Perez, Average Teenager or Sex *366 Offender? Solutions to the Legal Dilemma Caused, by Sexting, J. Marshall J. Computer & Info. L. 431, 433-34 (2009) (critiquing as over-inclusive law that criminalizes “self-created” child pornography); Stephen F. Smith, Jail for Juvenile Child Pomographers?: A Reply to Professor Leary, 15 Va. J. Soc. Pol’y & Law, 505, 508-09 (2008) (arguing that “severe penalties afforded by child pornography offenses ... are likely to be excessive as applied to minors who create sexually explicit images of themselves”); Mary G. Leary, Sexting or Self-Produced Child Pornography ? The Dialogue Continues— Structured Prosecutorial Discretion within a Multidisciplinary Response, 17 Va. J. Soc. Pol’y & L. 486 (2010) (observing broad range of activities that fall under “sexting” and arguing for “structured prosecutorial discretion” within the context of a “multidisciplinary approach” to address “self-created” child pornography”); Stephanie Gaylord Forbes, Sex, Cells, and Soma: Applying Sex Offender Registration Laws to Sexting Cases, 52 William & Mary L.Rev. 1717 (2010) (noting that “[sjexting is increasingly a part of popular culture” and discussing studies which found that 20 percent of teenagers had sent or posted nude or semi-nude images of themselves); Jan Hoffman, A Girl’s Nude Photo, and Altered Lives, N.Y. Times, Mar. 27, 2011, at A21 (describing incident in which the mass distribution via text of a fourteen-year old girl’s nude picture, which she originally sent to her boyfriend, led to prosecutions of her peers); Jan Hoffman, States Struggle with Minors’ Sexting, N.Y. Times, Mar. 26, 2011 (detailing attempts by state legislatures to modify child pornography laws or create sexting-specific offenses); Wendy N. Davis, ‘Sext’ Education, ABA Journal, May, 2011 at 20-21 (discussing state and federal responses to teen sexting and citing research that “4 percent of teens ages 12 to 17 who own cellphones have sent nude or nearly nude images or videos of themselves, while 15 percent in that group have received such images of someone they know”); What They’re Saying About Sexting, N.Y. Times, Mar. 26, 2011 (interviews with teens about sexting) (“There’s a law? I didn’t know that. How would you catch somebody when everyone does it?”); Massachusetts v. Oakes, 491 U.S. 576, 593 , 109 S.Ct. 2633 , 105 L.Ed.2d 493 (1989) (Brennan, J. dissenting) (“Many of the world’s greatest artists — Degas, Renoir, Donatello, to name a few, have worked from models under 18 years of age.”); Max Taylor & Ethel Quayle, Child Pornography: An Internet Crime 43 (2003); Jenkins, Beyond Tolerance at 30-31 (2001) (discussing circulation of nude photographs of children and noting that accounts of sex with young children was commonplace in “19th Century erotic classics” like The Pearl magazine and Walter’s My Secret Life)-, Richard Aldous, The Lion and the Unicom: Gladstone vs. Disraeli 52-54 (1st An. ed.2007) (describing former British Prime Minister William Gladstone’s sexual perversions, for which he regularly scourged himself in private penance). The daily press routinely reveals sexual eccentricities among some current American leaders. Many less eminent American visitors to Europe carried home supplies of “French pictures” and sexually explicit writings beginning as early as World War I. Cf. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706-07 (2d Cir.1934); see also United States v. Polizzi, 549 F.Supp.2d at 378-86 (extended discussion history of pornography).
The line between popular media and child pornography has increasingly been blurred with the proliferation of television shows depicting young people in sexualized situations and youthful actors appearing in provocative photographs. A new Music *367 Television (MTV) drama called “Skins” portrays the “sexual and drug-fueled exploits of misfit teenagers.” See Brian Stetler, A Racy Show with Teenagers Steps Back from a Boundary, N.Y. Times, Jan. 20, 2011, at Al. The show has raised questions about whether its portrayal of youth as young as fifteen nude or scantily clad, and engaging in a variety of sexual activities such as “simulated masturbation, implied sexual assault, and ... disrobing and getting into bed together” may run afoul of child pornography laws. Id. One scholar of free speech, art, and pornography noted, “There are times when I look at mainstream culture and think it is skirting up against the edge of child pornography law.” Id. at A3 (quoting Amy M. Adler). See also Parents Television Council, Sexualized Teen Girls: Tinseltown’s New Target, A Study of Teen Female Sexualization in Prime-Time TV (Dec.2010), available at http://www.parentstv.org/ FemaleSexualization/Study/SexualizecL Teen_Girls.pdf (analyzing top ten television shows on broadcast television for viewers aged twelve to seventeen in the 2009-2010 season and finding teenage girls were more likely to be sexualized than adult women). Of the scenes portraying young adult female characters, 86 percent were depicted as being of high school age. Id.; Shari Weiss, Miley Cyrus Shows Some Skin in Racy Leaked Photos, N.Y. Daily News.com (Dec. 24, 2010, 10:41 AM), http://www.nydailynews.com/gossip/2010/ 12/24/2010-12-24_new_raey_miley_cyrus_ photos_cap_off_scandalous_year_for_ disney_star.html (discussing photographs of popular teenage celebrity in sexually explicit situations).
ii. Industry
The digital revolution of the 1980s and 1990s enormously increased the ways that child pornography can be created, accessed, and distributed. New technologies abound for sending and receiving such materials over the Internet, including email, websites, social networking programs, chatrooms, and peer-to-peer file sharing programs. See Appendix B, Internet Technologies Providing Access to Child Pornography.
Although it is impossible to quantify with precision the size of the child pornography market, there is a consensus that technological advances have led to its proliferation over the past twenty years. See, e.g., Tim McGlone, As child pom activity grows, efforts to trap offenders do, too, The Virginian-Pilot (Jan. 16, 2011), available at, http://hamptonroads.com/2011/01/ child-porn-activity-grows-efforts-trap-offenders-do-too (“[Cjhild pornography was a dying industry until the Internet and peer-to-peer networks developed. ‘It went from almost dead to now a growing epidemic.’ ”) (quoting Neil MacBride, United States Attorney for the Eastern District of Virginia); U.S. Dep’t of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress 11-16 (2010) [hereinafter, DOJ, National Strategy] (noting view of law enforcement and prosecutors); Taylor & Quayle, supra, at 9 (indicating view among academics); Nat’l Center for Missing and Exploited Children, Press Release: Child Pom Among Fastest Growing Internet Business (Nov. 9, 2005), available at http://www.missingkids.com (reporting view of children’s advocacy group). But cf. Jenkins, supra, at 32-34 (“News media [have] used extravagantly inflated statistics to present child porn as pressing social menace.”); William A. Fisher & Azy Barak, Internet Pornography: A Social Psychological Perspective on Internet Sexuality, 38 J. of Sex Res. 4, 312, 313-14 (2001) (noting “inconsistencies and prima facia questionable claims in research on the prevalence of sexually explicit materials, on and off the Internet”).
*368 Child pornography was widely accessible even in the 1960s and 1970s, owing in part to changes in general views of sexuality in the United States and Europe. The late 1960s marked the beginning of a commercial boom in the production of such materials, particularly in the Netherlands and Scandinavian countries. Jenkins, supra, at 30-32. Magazines produced in this era, some of which established powerful “brand identities,” depicted children of varying ages — from toddlers to teenagers — in various states of undress and engaged in explicit sexual activities with each other and with adults. Id. at 31. As a result of the commercial importation and domestic production of magazines and films, it was “easy to walk into a store in New York, Los Angeles, or London to purchase what was frankly advertised as child porn.” Id. at 32. The commercial child pornography market garnered an audience beyond the “child porn world strictly defined” as magazines notionally devoted to rock music and radical politics in the 1970s would, on occasion, utilize pictures of pubescent nudes. Id.
The existence of easily available subscription-based child pornography websites confirms the continued production and distribution of child pornography as a vast profit-making enterprise. Much of the material is sent electronically from Eastern European and Asian countries, with constantly changing sources and shifts in computer centers that makes prosecution of producers and vendors difficult.
A single website uncovered by federal law enforcement officials is said to have grossed $1.4 million dollars in one month, with 35,000 individual subscribers in the United States alone. Taylor & Quayle, supra, at 5; cf. Brad Stone, Sex Ads on Craigslist Attract More Revenue, and More Scrutiny, N.Y. Times, Apr. 26, 2010, at B1 (discussing revenue to classifieds website from sexual advertisements). Oft-cited estimates of the annual revenue of child pornographic websites range from $3 billion to $21 billion. See, e.g., Wade Luders, Child Pornography Web Sites: Techniques Used to Evade Law Enforcement, 26 FBI L. Enforcement Bull. 7, at 17 (2007) (reporting that child pornography websites are capable of bringing in $3 billion annually); Kathryn Conroy, Letter to the Editor, N.Y. Times, May 28, 2010 at A22 (citing $3 billion estimate), filed in United States v. Polouizzi, (E.D.N.Y.), No. 06-CR-22, Docket No. 238; Deleting Commercial Pornography Websites from The Internet: The U.S. Financial Industry’s Efforts to Combat the Problem: Hearing Before the Subcommittee on Oversight and Investigations of the H. Comm, on Energy and Commerce, 109th Cong. 86 (2006) (statement of Hon. Stupak) (“Child pornography is estimated to be $21 billion [annually].”). The reliability of these figures is not clear. See, e.g., Carl Bialik, Measuring the Child-Pom Trade, Apr. 18, 2006, available at http://online.wsj.com/ artiele/SB114485422875624000.html (questioning sources and methodology underpinning $21 billion estimate); Theme Paper on Child Pornography for Second World Congress on Sexual Exploitation of Children: Child Pornography 17 & n. 23 (Yokohama 2001), [hereinafter Second World Congress, Theme Paper on Child Pornography] available at http://www.csecworId congress.org/en/yokohama/Background/ Theme_papers.htm (last accessed Aug. 15, 2010) (citing $3 billion estimate, but noting that its “provenance is uncertain”). However large its size, it is evident that there is a substantial continuing and highly profitable international market for child pornography.
Aiding the commercialization of child pornography production and distribution is an online market in which these images are accessed, viewed, and exchanged with *369 out the transfer of funds. As one commentator, writing in 2001, put it:
In the mid-1970s, a child porn magazine containing thirty or so pictures might cost ten dollars in an American city. Today, the entire contents of that same magazine are available through the Internet for free, as are tens of thousands of other, more recent counterparts. A month or so of free Web surfing could easily accumulate a child porn library of several thousand images. The only payments or charges involved would be the standard fees for computer connect time and the cost of [computer hardware]. Prices in the child porn world have not just fallen, they have all but been eliminated.
Jenkins, supra, at 8.
This trend has been enhanced in recent years by the increased use of peer-to-peer file sharing programs, which allow individuals to share digital files, including videos and still pictures, over the Internet, often free of charge. See U.S. Gov’t Accountability Office, GAO-03-351, File Sharing Programs: Peer-to-Peer Networks Provide Ready Access to Child Pornography 11-14 (2003) [hereinafter GAO, Peer-to-Peer Networks] (noting proliferation of child pornography over peer-to-peer networks); DOJ, National Strategy, supra, at 12-15 (citing studies identifying over 20 million unique Internet Protocol (IP) addresses offering child pornography on such networks); see also generally Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919-20 , 125 S.Ct. 2764 , 162 L.Ed.2d 781 (2005) (describing mechanics of peer-to-peer programs); GAO, Peer-to-Peer Networks, supra, at 21-25 (same); cf. Rachel Henes [New York City school social worker], XXX Marks the Rot, N.Y. Daily News, Jan. 2, 2011. at 22 (“sex-ting between kids as young as 12, videos of sexual acts going viral.... And boys aren’t the only ones affected by our porn culture. Girls, who make up a portion of the 12-17 year olds that comprise the porn industry’s largest consumer base, have internalized these messages too. The prevalence of porn tricks them into believing that sending naked pictures of themselves or engaging in oral sex rings in school stairwells is edgy, cool, even liberating.”).
Newly produced or obtained images appear to have increased “value” for users by permitting individuals to gain “status” among underground online groups. Janis Wolak, David Finkelhor, and Kimberly J. Mitchell, The Varieties of Child Pornography Production, in Viewing Child Pornography on the Internet: Understanding the Offense, Managing the Offender, Helping the Victims 31, 43 (Ethel Quayle and Max Taylor eds.2005) [hereinafter Wolak et al., Varieties of Child Pornography Production ]. In this perverse market, the value of such images may increase with their uniqueness, abhorrence, or the extent to which they are seen to fill a “gap” within a particular collection. This view has been expressed by offenders who have been interviewed by academics and law enforcement officers. See, e.g., Howitt & Sheldon, supra, at 117 (“Particularly when the images were getting younger and I noticed ... you would get sets of images as well and that played quite a big part as well ... to get complete sets of things.”); Taylor & Quayle, supra, at 161 (quoting an offender as stating: ‘You were hoping that someone would post something that you had a series of that had a few gaps ... you were hoping that somebody out there would post some.”); see also generally Monique Mattei Ferraro & Eoghan Casey, Investigating Child Exploitation and Pornography: The Internet, the Law, and Forensic Science 73 (2005) (observing that when users discover “missing” pictures from well-known series, they are consid *370 ered a “hero” among their online peers, referring to the phenomenon as “the online equivalent of baseball card trading.”).
Because the posting of new materials is encouraged within online communities, see, e.g., Falso, 544 F.3d at 118-21 ; Sheldon & Howitt, supra, at 28; Jenkins, supra, at 62-63, it has been hypothesized that individuals may be induced to sexually abuse children in order to provide images to their online communities in an effort to give them a sense of status and access to additional materials. One father said he began molesting his daughter when she was five years old because he “needed ‘fresh’ images to provide others on the Internet before they would trade their own newest or least-circulated images with him.” DOJ, National Strategy, supra, at 18; see also, e.g., Taylor & Quayle, supra, at 161 (quoting offender as stating: “I started offending against my daughter ... I was in chatrooms ... people would send lists of material that they had ... and they were reluctant to give me access to any of that material unless I could come up with some images that I could trade for this new material.”). How many children are being abused because of this corrupt search for psychic and monetary gain is not clear; many of the images are old and used repeatedly. See Part II.E.iii, iv., infra.
In the contemporary online world, some encounters with child pornography may be unintentional. A persistent refrain in available research is that “juvenile [as well as other] users of peer-to-peer networks face serious risk of inadvertent exposure to pornography when searching and downloading images.” GAO, Peer-to-Peer Networks, supra, at 14; accord Fed. Trade Comm., Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues 5-7, 10-16 (2005) [hereinafter FTC, Peer-to-Peer File Sharing]. Thus, there is a distinct possibility that criminal prosecution might arise from accidental exposure to child pornography on the Internet. See, e.g., Polizzi, 549 F.Supp.2d 308, 354-58 (noting potential prosecution under section 2252 of title 28 of the United States Code for accidental computer-based possession and receipt); Note, Child Pornography, The Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L.Rev. 2206 (2009) (similar).
iii. Content
There is no universal definition of child pornography. Legal proscriptions vary widely by jurisdiction, both in terms of the age of the children and the nature of content proscribed. See DOJ, Child Pornography on the Internet, supra at 7; Taylor & Quayle, supra at 28-30; Second World Congress, Theme Paper on Child Pornography, supra at 9-13.
Section 2256 of Title 18 of the United States Code stresses — but is not limited to — “sexually explicit conduct.” It provides that:
(8) “Child pornography” is any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture ... of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to ap *371 pear that an identifiable minor is engaging in sexually explicit conduct.
18 U.S.C. § 2256 . It further states that:
[S]exually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person[.]
18 U.S.C. § 2256 (2)(A); accord § 2256(2)(B). Although the statute as originally enacted defined a “minor” as an individual under the age of sixteen; it was amended in 1984 to cover persons up to age eighteen. See Pub.L. No. 98-292, § 5 (a)(1) (codified as amended at 18 U.S.C. § -2256(1)).
Depictions need not portray sexual contact with children to fall within the scope of the federal prohibition. Neither nakedness nor physical contact is required. “Lascivious exhibition of genitals or pubic area,” 18 U.S.C. § 2256 (2)(A)(v), has been interpreted broadly to include pictures focused on a child’s pubic region, even where the subject is alone and clothed. See, e.g., United States v. Knox, 32 F.3d 733, 744-45 (3d Cir.1994); United States v. Musumeci, 307 Fed.Appx. 471, 473 (2d Cir.2008) (approving Knox, 32 F.3d at 744-45 ).
Researchers investigating the nature of child pornography in the contemporary market have identified ten levels of image severity: (1) indicative; (2) nudist; (3) erotica; (4) posing; (5) erotic posing; (6) explicit erotic posing; (7) explicit sexual activity; (8) assault; (9) gross assault; and (10) sadistic/bestiality. See Taylor & Quayle, supra, at 31-36. The characteristics of depictions span a wide spectrum— from seemingly innocuous beach pictures to vile depictions of sexual assaults. Although not completely consonant with legal definitions, the categories are helpful in understanding the contemporary child pornography market and its impact on victims and others. See DOJ, Child Pornography on the Internet, supra, at 7 (utilizing taxonomy set forth in Taylor & Quayle, supra, at 31-36).
The most severe depictions include the grotesque. Emblematic is a narrative description recently offered by a commentator and children’s advocate:
Child pornography ... depicts the rape of infants and children. It includes oral, anal and vaginal penetration; digital penetration of the anus or vagina, tying and gagging children, ejaculating onto the children’s faces and bodies, oral stimulation of the child or stimulation of the adults by the child, forcing the child to swallow ejaculate, urinating on the child ... up to and including snuff movies where the children are killed. These children are left bleeding, bruised, and broken, many with significant internal injuries including ruptured bowels and vaginas.
Letter from Evin Daly, CEO/Founder, Child One International, May 24, 2010, filed in United States v. Polouizzi, No. 06-CR-22, Docket No. 239.
A congressionally funded survey of Internet-related crimes indicates that many individuals arrested for child pornography possession had images falling on the severe end of the spectrum — both in terms of the age of children depicted and the content. See generally Janis Wolak, David Finkelhor, and Kimberly Mitchell, Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings from the National Juvenile Victimization Study (2005) [hereinafter Wolak et al., Child Pornography Possessors]. The majority of *372 individuals surveyed were found to have pictures of prepubescent children engaged in sexually explicit activity: 83 percent had images of -children below the ages of six and twelve; 92 percent had images of minors focusing on the genitals or showing explicit sexual activity; 80 percent had pictures showing sexual penetration of a child; and 71 percent had images showing sexual contact between an adult and a child. Id. at 4-5.
These findings are consistent with studies of the international child pornography market. Ongoing research of the European-based COPINE project — a multi-year initiative involving experts from various academic disciplines in collaboration with law enforcement — entails collection of large, random samples of archival child pornographic material from publicly available newsgroups. See generally Taylor & Quayle, supra, at 41. Of the images obtained, more than half depicted young girls, and nearly all included depictions of sexually explicit activities. Id. at 41. There is a prevalence of child pornography “series,” depicting, for example, the same child being abused over a number of years. Id. at 38-41; see also Jenkins, supra, at 2 (describing series of pictures of one of the “most prized collections” on the Internet). Other collections are sequential images taken during the filming of particular pornographic videos in the 1960s and 1970s. Some research suggests that the harshest pictures may be incidental to a form of “sex tourism,” and that the proportion of online images depicting prepubescent children and violent, sadistic acts may be increasing. See, e.g., DOJ, National Strategy, supra, at 22 (noting that law enforcement officers are seeing more images depicting violent and sadistic acts, and showing younger children and toddlers); Jenkins, supra, at 186 (discussing sex tourism).
iv. Viewers
There is no single “profile” of the child pornography viewer. A report by law enforcement officials indicates that he “may come from all walks of life and show few warning signs.” DOJ, Child Pornography on the Internet, supra, at 14; see also, e.g. Wolak et al., Varieties of Child Pornography Production, supra, at 34-36. Perusal of newspaper headlines reveals that child pornography arrests, indictments, and convictions span socioeconomic and professional boundaries. See, e.g., Victoria Attorney Indicted in Child Pom Case, Times Record News Online/Associated Press, Aug. 20, 2010, http://www.timesrecord news.com/news/2010/aug/20/victoriaattorney-indicted-child-porn-case (attorney and local politician); CNN Wire Staff, Former Alabama Prosecutor Arrested on Enticement, Child Pom Charges, CNN. com, Aug. 18, 2010, http://www.cnn.com/ 2010/CRIME/08/10/alabama.da.sex.crime (attorney and state prosecutor), Robin Wilson, Yale to Fire Professor for Child Pornography, Chronicle of Higher Education Online, Mar. 10, 2000, http://www. chronicle.com/artiele/Yale-to-FireProfessor-for/13724 (professor of geology); Rosa Prince, Gary Glitter Faces 50 Child Pom Charges, The Independent, Mar. 31, 1998, http://www.independent.co.uk/news/ gary-glitter-faces-50-child-porn-charges1153478.html (glam rock performer); see also generally DOJ, supra, at 14 (describing range of people involved in offenses); Wolak et al., Child Pornography Possessors, supra, at 34-46 (same); Mike Nelson, Midlands Voices: Child-Pom Cases are Not all Alike, Omaha World Herald Online, June 20, 2010; cf Sysue Whitley, Prison Time for Viewing Pom? A Teenage Boy Faces Decades in Prison For Visiting Sexually Explicit Web Sites: But Was it Really Someone Else?, ABC News Online, Apr. 12, 2007, http://www.abcnews. *373 go.com (state charges brought and then dropped against sixteen year old).
Less diversity apparently exists among federal offenders prosecuted, in terms of age, race, and sex. It has been said that: “[a]mong the few distinguishing features of offenders are that they are likely to be white, male, and between the ages of twenty-six and forty, and may be heavy Internet users.” DOJ, Child Pornography on the Internet, supra, at 14 (citing research). Younger offenders appear to be a rarity, but this may be due to a reluctance of some authorities to charge persons in this age group. See, e.g., Wolak et ah, Varieties of Child Pornography Production, supra, at 34-36 (noting that 89 percent of a sample of individuals arrested for child pornography -production in 2000 were older than twenty-eight years old); cf. U.S. Sentencing Commission, Annual Report 35 (2009) (4.1 percent of federal offenders, for all federal offenses combined, were under the age of twenty-one). But cf Taylor & Quayle, supra, at 5 (observing that individuals as young as thirteen are involved in distribution of child pornography).
Analyses by law enforcement agencies imply that individuals who obtain and view child pornography over the Internet are diverse — not only in the nature of images viewed but also in their motivations for doing so. See DOJ, Child Pornography on the Internet, supra, at 13-17; Taylor & Quayle, supra, at 62, 72; David Middelton et ah, What Sort of Person Could Do That? Psychological Profiles of Internet Pornography Users, in Viewing Child Pornography on the Internet: Understanding the Offense, Managing the Offender, Helping the Victims, 100-06 (Ethel Quayle & Max Taylor eds., 2005); see also, e.g., William Bernet & Anas Alkhatib, Genomics, Behavior, and Testimony at Criminal Trials, in The Impact of Behavioral Sciences on Criminal Law 291, 311 (Nira A. Farahany ed., 2009) (“Sexual offenders are a heterogeneous lot. At one extreme, some are compulsive, violent, and sadistic — those likely to offend again at the earliest opportunity. At the other extreme, some sexual offenders have simply manifested transitory bad judgment and are unlikely to re-offend.”).
Interviews with offenders confirm that child pornography is sought for a variety of reasons. Key themes include the use of child pornography: (1) for sexual arousal; (2) for collecting; (3) as a way of facilitating social relationships; (4) as a way of avoiding real life; and (5) for other “recreational” purposes, including out of impulse, curiosity, or short-term entertainment. Sexual arousal has been identified as a dominant motivating factor, often functioning in combination with the others. See Sheldon & Howitt, supra, at 109-121; DOJ, Child Pornography on the Internet, supra, at 14; Taylor & Qualye, supra, at 80, 83.
Factors other than a desire for sexual gratification hold particular salience in the context of Internet pornography. With respect to collecting, computer-related technologies permit users to amass vast and unique “libraries” of child pornography. See DOJ, National Strategy, supra, at 11-12; Howitt & Sheldon, supra, at 117-119; Jenkins, supra, at 101. Whereas in decades past, individuals might have obtained a limited number of “French pictures,” magazines, or videotapes in stores or through mail-order catalogues, today, many thousands of child pornographic images and videos can be obtained by clicking a button. See, e.g., DOJ, National Strategy, supra, at 12 (citing example of offender who amassed one million images and many videos, some running an hour in length). “There is an Internet subculture of child pornography aficionados whose main interest seems to be not only enjoy *374 ing viewing child pornography, but collecting it.” Ferraro & Casey, supra, at 73.
Social dimensions are substantial in the accessing, viewing, and trading of child pornography on the Internet. While some Internet users may view and download child pornography with limited or no online interaction, see Sheldon & Howitt, supra, at 119-120, others are drawn to a sense of “belonging” that comes with participating in online networks or communities of like-minded individuals. Statements of offenders are illustrative. See, e.g., id. at 119 (“[The Internet] offered a kind of place to meet people and talk about similar fantasies ... I’m getting an element of feeling that I’m wanted ... I got a thrill of being ... accepted ...”); id. (“I was more interested in the conversations I was getting, the friendship I was getting____ I was very lonely____ [T]o prove that they were genuine they sent me the indecent stuff ... I had to prove ... that I[was] genuine by doing the same to them.”); Taylor & Quayle, supra, at 139 (“I got almost ... more satisfaction from actually just interacting with my fellow paedophfiles] ... [than] I did actually looking at the pictures.”); id. (“I wanted people to like me. I’ve always been like that[.]”).
A perceived sense of community may serve to normalize and reinforce deviant behavior of child pornographers, in some instances leading to a cycle of viewing increasingly graphic images, or even prompting the seeking out of individuals for illicit sexual encounters. Such a cycle has been acknowledged by some offenders. See, e.g., Taylor & Quayle, supra, at 111— 112 (discussing “downloading spiral,” where user said he was “getting so much from something that wasn’t real ... you go back to reality and reality feels even worse than it was before”); id. at 186 (“I was finding more and more explicit stuff on the computer and I was looking at the computer thinking oh ... they’re doing it ... it can’t be that bad ... it’s there you know ... I’m not doing any harm and she doesn’t seem to mind .... ”); id. (“I’d look at those [images] and all I wanted to do was abuse her.... [I’d] make sure she was asleep and then I’d abuse.”); id. at 188 (“I was actually getting quite bored as it were ... with the sort of child pornography ... I was becoming sort of much more obsessed with bondage ... and sort of torture ... imagery. So ... I’d kind of exhausted ... the potential that it had for sexual arousal.”). But see id. at 183 (“[T]he big thing I kept saying and 1 believed it ... with every inch of my body ... was that this was OK because ... I’m not touching anybody ... it’s better for me to sit here fantasizing and looking at pictures ... and ... not doing anything else.”).
A sizeable number of offenders appear to join the online world of child pornography precisely because it is disconnected from face-to-face interactions in the real world. See generally Taylor & Quayle, supra, at 97-119; Sherry Turkle, Life on the Screen (1995). To some, online pornography appears to be a coping mechanism, a way to avoid troubles of real life. See, e.g., Sheldon & Howitt, supra, at 113 (“It’s just coping with life.... [I]t was a form of escapism ... to get out of my dilemma.... [W]hen 1 went on the net ... [I] was swept away ... I was in ... m[y] own little world.”). To others, it is a way of anonymous self-exploration or a way to satisfy curiosities. See, e.g., Michele Ybarra, Kimberly J. Mitchell, Exposure to Internet Pornography Among Child and Adolescents: A National Survey, 8 CyberPsyehology & Behav. 473, 474, 483 (2005) (discussing prevalence of older youths accessing pornography at a time when it is “developmentally appropriate to be sexually curious”). Some research indi *375 cates that involvement in Internet child pornography may be particularly appealing to individuals who “embrace ... risk taking” or seek “immediate stimulus,” whether sexual or otherwise. See Taylor & Quayle, supra, at 18,175.
v. Relationship Between Viewing and Acting; Real and Perceived Harms
Child pornography can, and often does, depict serious sexual and physical abuse of children. See Part II.E.iii, supra. A persistent concern is that observing child pornography might lead viewers to themselves sexually abuse children in the future. Rehable empirical evidence on thi's issue is lacking. A few statistically unreliable studies of convicted child pornography offenders indicate that a considerable percentage have abused children in the past. See, e.g., Michael L. Bourke & Andres E. Hernandez, The “Butner Study” Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Violence 183, 187 (2009) (observing that 85 percent of 155 prisoners participating in 18-month intensive residential sexual offender treatment program reported having committed acts of sexual abuse against minors); DOJ, National Strategy, supra, at 19 (“The National Juvenile Online Victimization (NJOV) study revealed contact offenses in one of every six cases that began as a child pornography investigation.”); see also, e.g., Kenneth Panning, National Center for Missing and Exploited Children, Child Molesters: A Behavioral Analysis (5th ed.2010) (reporting anecdotal information based on interviews with convicted offenders). These investigations have been widely cited as evidence of the risk of future dangerousness posed by individuals who view child pornography. See, e.g., Audrey Rogers, Child Pornography’s Forgotten Victims, 28 Pace L.Rev. 847, 852-54 (2008) (citing The Butner Study and NJOV survey); Enhancing Child Protection Laws After the April 16, 2002 Supreme Court Decision, Ashcroft v. Free Speech Coalition: Hearing Before the Subcomm. on Terrorism, and Homeland Security of the H. Comm, on the Judiciary, 107th Cong. 17 (2002) (statement of Michael J. Heimbach, Crimes Against Children Unit, Criminal Division, FBI) (citing Lanning, supra).
Somewhat dubious is the probative value of these largely anecdotally-based inquiries on the effect of viewing presumably resting on questioning of convicted offenders. The universe itself is biased since the persons studied constitute the dangerous group likely to have been prosecuted. See, e.g., L. Jill Rettinger, The Relationship between Child Pornography and the commission of Sexual Offenses Against Children: A Revieiv of the Literature 2-4 (2000) (noting limitation of anecdotal studies of convicted offenders); Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, 61 Hastings L.J. 1282 , 1294-98 (2010) (discussing methodological flaws of both types of studies); see also, e.g. United States v. Johnson, 588 F.Supp.2d 997 (S.D.Iowa 2008) (systematically dismantling Butner Study); Taylor & Quayle, supra, at 26-27 (describing Lanning Report 1st ed. (1992) as “lacking empirical validation”); see also, e.g., Julian Sher & Benedict Carey, Debate on Child Pornography’s Link to Molesting, N.Y. Times, July 19, 2007, http://www.nytimes. com/2007/07/19/us/19sex.html (noting controversy surrounding Butner Study).
At most, these materials suggest some possible correlation between child pornography and contact offenses among a non-randomized subset of convicted offenders — many of whom were convicted in connection with a contact offense or suspicions *376 of a contact offense. As the authors of such studies caution, it would be fallacious to draw conclusions from them about causation or the likelihood that any particular child pornography offender will act out in the future. See, e.g., Andres E. Hernandez, Position Paper: Psychological and Behavioral Characteristics of Child Pornography Offenders in Treatment at 4 (2009) (unpublished manuscript) (author of Butner Study, noting, “some individuals in law enforcement are tempted to rely on a biased interpretation of our study (i.e., to prove that the majority of [child pornography] offenders are child molesters)” and asserting that “the argument that the majority of [child pornography] offenders are indeed contact sexual offenders ... simply is not supported by the scientific evidence”), available at http://www.iprc.unc. edu/G8/Hernandez_position_paper_Global_ Symposium.pdf; cf. United States v. Falso, 544 F.3d 110, 122 (2d Cir.2008) (“It is an inferential fallacy of ancient standing to conclude that, because members of group A ... are likely to be members of group B ..., then group B is entirely, or even largely composed of, members of group A.”) (quotation marks omitted).
Scientifically acceptable empirical analyses have thus far failed to establish a causal link between the mere passive viewing of child pornography — particularly by male adolescents — and the likelihood of future contact offenses. See, e.g., L. Webb, et al., Characteristics of Internet Child Pornography Offenders: A Comparison with Child Molesters, 19 Sexual Abuse 449, 464 (2007) (finding Internet-only offenders “significantly less likely to fail in the community than child molesters,” and concluding that “by far the largest subgroup of internet offenders would appear to pose a very low risk of sexual recidivism”), available at http://sax.sagepub. com/content/19/4/449.full.pdf+html; Jerome Endrass et al., The Consumption of Internet Child Pornography and Violent Sex Offending, 9 BMC Psychiatry 43 (2009) (“[T]he consumption of child pornography alone does not seem to represent a risk factor for committing hands-on sex offenses ... at least not in those subjects without prior convictions for hands-on sex offenses”), available at http://www.ncbi. nlm.nih.gov/pmc/articles/PMC2716325/pdf/ 1471-244X-9-43.pdf; Rettinger, supra, at 11 (“[T]he majority of studies in this area have been done in the context of adult, rather than child, pornography. There are also methodological and ethical difficulties in examining such relationships.”); Taylor & Quayle, supra at 72 (“Overall, there appears to be little support for the allegation of a direct causal link between viewing pornography and subsequent offending behavior.”); id. at 93-94 (“The relationship between contact offenses and pornography remains unclear.... [F]or some respondents, pornography was used as a substitute for actual offending, whereas for others, it acted as a blueprint and stimulus for a contact offense.”); Michael C. Seto & Angela W. Eke, The Criminal Histories and Later Offending of Child Pornography Offenders, 17 Sexual Abuse 201, 201 (2005) (noting, at the time of publication, that there were “no published data on the future offending of child pornography offenders”); Jenkins, supra, at 173 (“[T]he statistics establish no causal link between child porn materials and actual behavior.”); Sheldon & Howitt, supra, at 203-204 (“There is a common assumption that Internet child pornography offenses constitute stepping-stones that finally lead to direct sex offending against children. This idea is common but ... the evidence is not strong in its favor.”); cf. Stephen T. Holmes & Ronald M. Holmes, Sex Crimes: Patterns and Behavior 157 (3d ed.2009) (“Exposure to [adult] pornography may play a positive role in the maturational *377 process of non-offenders. The most important finding is that [contact] sex criminals, not only as adolescents but also as adults, see less pornography than [non-offenders].”).
Rudimentary typologies with dubious dependability of offenders and empirical models have been developed to aid in predicting future dangerousness of sex offenders. See, e.g., Ian Friedman et al., Sexual Offenders: How to Create A More Deliberative Sentencing Process, 33 The Campion 12, 15 (2009) (discussing general sex offender typologies in context of Internet pornography offenses); Middelton et al., supra, at 99-106 (similar). Because of the heterogeneous nature of offenders and the complexity of the cognitive and emotional processes involved, the predictive utility of these tools is limited, particularly in the context of adolescent child pornography viewers. See, e.g., L. Alvin Malesky, Jr. et al., Child Pornography and the Internet, in Sex Offenders: Identification, Risk Assessment, Treatment, and Legal Issues 302, 312-19 (Saleh et al., eds.2003) (noting that, despite considerable advances in field of sex offender risk assessment generally, available risk assessment tools have limited predictive utility); cf. Psychological Assessment of Sex Offenders, in Viewing Child Pornography on the Internet: Understanding the Offence, Managing the Offender, Helping the Victims, 109, 123 (2005) (diagnosis of pedophilia is not a dispositive factor); Maggie Jones, How Can You Distinguish a Budding Pedophile from a Kid with Real Boundary Problems?, N.Y. Times Magazine, July 22, 2007 (discussing challenges of adequately diagnosing pedophilia, particularly among young people). See also Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 Wash. U.L.Rev. 4, 853 (2011) (examining conflation of child sexual abuse with possession of child pornography and arguing against harsh sentencing for possession of child pornography).
Varying interactions of unquantifiable forces pushing in a variety of directions determine the appropriate sentence in child pornography cases. The assessment of whether an offender will act out in the future requires a prosecutor’s and judge’s careful, informed and somewhat experiential judgment — like other sentencing factors — on a case by case basis rather than by a rigid a priori scheme applicable to all cases. Ultimately, the judgment is based on rough calculations of nonquantifiable risks and benefits, cruelties and compassions; statute and precedent provide limited guidance in the individual prosecution. Cf. Justice David H. Souter, Harvard Commencement Remarks, Harvard Gazette Online (May 27, 2010), http://news.harvard. edu/gazette/story/2010/05/text-of-justicedavid-souters-speech (“I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.... [We] can still address the constitutional uncertainties the way they must have been envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.”); William J. Brennan, The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L.Rev. 433 (1986) (exploring the obligation of Article III judges to speak for the current community in interpreting the Constitution); Stephen Breyer, Judicial Review: A Practicing Judge’s Perspective, 78 Tex. L.Rev. 761 (2000) (discussing the “set of cases ... in which there is an inevitable tension between the will of the elected legislature and the work of the unelected judge,” noting that “every legal decision interacts ... with other decisions, principles, standards, practices, and insti-
*378 tutional understandings, always modifying the Vet)’ of the law; and every decision affects ... the way in which that web, in turn, affects the world.... [I]n respect to constitutional matters, estimates of vertical effects — that is, the real world consequences of horizontal interactions — have a particularly important role to play.”); Justice Samuel A. Alito, Jr., Learned Hand: Undeniably Great Judge, New York Law Journal, June 14, 2010, at 2; Spector Motor Service v. Walsh, Inc., 139 F.2d 809, 814 (2d Cir.1944) (“In addition to the general course of decisions ... we shall examine certain specific trends ... more directly applicable to the present issue.”); id. at 823 (Hand, J., dissenting) (“It is always embarrassing for a lower court to say whether the time has come to disregard a decision of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view. I agree that one should not wait for formal retraction in the face of charges plainly foreshadowed; the higher court may not entertain an appeal in the case before the lower court, or the parties may not choose to appeal.”); Essay, The Roles of a Federal District Court Judge, 76 Brook. L.Rev. 2, 454 (2011) (“Ultimately, it is the trial judge’s conscience, exercised under the constraints of our rule of law, that guides the pen writing an opinion justifying a judgment.”).
F. Effect on Abused Children
The production of child pornography can severely harm children. In the most extreme instances, they suffer not only physical and mental abuse, but death. A well-publicized example is Thea Pumbroek. When six years old she died of a cocaine overdose in the bathroom of an Amsterdam hotel in the mid-1980s, while being filmed for a pornographic video. See Taylor & Quayle, supra, at x — xi, 42-43. The killing of children in the production of child pornography may not be accidental. Cf. Comment, Sentencing “Cybersex Offender”: Individual Offenders Require Individualized Conditions when Courts Restrict Their Computer Use and Internet Access, 58 Cath. U.L.Rev. 779, 789 n. 67 (2009) (discussing defendant who “expressed interest in chatroom message that advertised ‘snuff films of little children’ ”).
Many children who are not physically injured in the making of child pornography grow up knowing, or learning later, that their abuse has been frozen in time — sold, circulated, and traded long after physical trauma ended, often for use in masturbation. See, e.g., New York v. Ferber, 458 U.S. 747, 759 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982) (noting harm suffered by child victims from circulation of images); accord Osborne v. Ohio, 495 U.S. 103, 110-111 , 110 S.Ct. 1691 , 109 L.Ed.2d 98 (1990). The following example is not atypical:
When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as ‘the Misty series’ depicting her abuse have circulated on the internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.... Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices ... have arrived at Amy’s home ...
See John Schwartz, Child Pornography, and an Issue of Restitution, N.Y. Times, Feb. 3, 2010. Analysis of messages posted by participants in “Wonderland” — a well-known and now defunct electronic bulletin board frequented by child pornographers — illustrates that demand for such images persists, and may even increase, over time:
*379 [R]emember the case of ‘Helena,’ probably a British girl, who tragically, may be one of the best-known sex stars on the Web. In the late 1980s, as a little girl of seven or eight, Helena became the subject of a photo series that depicted her not only in all the familiar nude poses of hardcore pornography but also showed her in numerous sex acts with Gavin, a boy of about the same age. Both are shown having sex with an adult man, presumably Helena’s father. The images are collectively known by various names but the commonest is “hel-lo,” that is, “Helena/Lolita.” Since their first appearance they have had an astonishing afterlife; probably not a day has passed without the hel-lo images appearing anew on some electronic server somewhere in the world, and they are cherished by thousands of collectors worldwide. They seem to be the standard starter kit for the child porn novice____
Or we might consider the more recent KG and KX series, the ‘kindergarten’ photos, which together represent perhaps the most prized collections currently available on the Net. KG is a series of hundreds (maybe thousands) of nude images of several very young girls, mainly between the ages of three and six years old, with each item including the girls’ name — Helga, Inga, and so on. The photographs date from the mid-1990s, and they likely derive from Germany or Scandinavia.... The KG collection exists alongside a still more sought-after version, KX, which depicts the same children in hard-core sexual situations with one or more men. Put simply, most are pictures of four- and five-year old girls performing oral sex and masturbation on adult men. The immense popularity of the KG images ensured an enthusiastic market for KX, which entered general circulation in early 2000. See Jenkins, supra, at 2-3; see generally Taylor & Quayle, supra, at 8 (“Child pornography ... represents and preserves that abuse or sexualized image for as long as that photograph [or video] remains.”); Ferao & Casey, supra, at 5 (“Child pornography is a permanent record of a child’s sexual assault that exploits the victim each time it is viewed for pleasure.”). The harm to the victims, families, and communities arising from the production and continued circulation of such images is great, but .impossible to quantify. Feraro & Casey, supra, at 5. But cf. Schwartz, supra (describing one child pornography victim’s attempt to obtain restitution from possessors of images depicting the abuse she suffered years prior).
The testimony in the present case of a qualified psychologist, Dr. Mary Anne Layden, described the effects on both the viewers and viewed:
Q Are you a licensed psychologist in the State of Pennsylvania?
A I am.
Q And how long have you been practicing as a psychologist?
A Twenty-five-years.
Q And can you please just tell us what degrees you have in psychology?
A I have a Bachelor of Science Degree in Psychology and a Ph.D. in psychology
Q Are you currently an Assistant Professor of Psychology in the Department of Psychiatry at the University of Pennsylvania?
Q Are you a member of the American Psychological Association and other similar associations?
A I am.
*380 Q Have you given over 40 lectures about various issues related to cognitive therapy?
A Yes.
MS. FEBUS: So, at this time, your Honor, is Mary Anne Layden qualified as an expert in psychology?
THE COURT: Yes.
Q Dr. Layden, have you treated adult survivors of sexual abuse and trauma?
A I have.
Q And that class of or group of people that you treated, does that include adult survivors who were also victims of child pornography?
A Yes.
Q Have you treated sex offenders?
A Yes.
Q And among the group of sex offenders that you have treated, has it also included sex offenders who are involved in the distribution or trading of child pornography?
A Yes.
Q What are some of the immediate and long-term psychological harms that you observed based on your clinical experience with respect to victims?
A The victims start with, at the time of the trauma, physical harms. So, there may be anal ripping, there may be vaginal ripping, there may be sexually transmitted diseases that show up in the vagina, sometimes in the mouth, sometimes in the eyes.
Once those problems are healed, though, sometimes it can take decades for some of those problems to heal. Once they’re healed, there are psychological consequences. Some of the psychological consequences show up in childhood. Some of the psychological consequences show up in childhood and stay in the adult life; and there are other psychological consequences that don’t show up until the adult life. Of the psychological consequences, you’ll see depression. You’ll see suicidality where these individuals feel that life is not worth living. You’ll see symptoms of post traumatic stress disorder and, in fact, the research on post traumatic stress disorder indicates that the most effective way to produce adult psychiatric problems is childhood sexual abuse.
When you look at the long-term research of individuals who have, as adults, have psychological problems, childhood sexual abuse shows up in their histories more than any other characteristic.
So, the psychological issues include the typical symptoms of post traumatic stress disorder and some others that are specific to the imagery problem. Some of those include reexperiencing. So, these are individuals who reexperienced their trauma sometimes for decades. The reexperiencing could be intrusive memories. They can be going through their day and memories of the trauma can come back unbidden. It can include nightmares where at nighttime they play over and over again sometimes for decades of the experience they had as a child. It can include flashbacks, and a flashback is when an individual is reexperiencing the trauma and can’t tell that the trauma is not happening to them right at that moment.
So, decades later, they could be having an experience where they think, “I’m being raped and tortured right now,” that’s a flashback. So, reexperiencing is one of the common responses.
They also have the experience of post traumatic stress which is called arous *381 al. Now, arousal means that these victims are constantly anxious, they walk around anxious. It shows up first as hypervigilance, they are constantly scanning the environment. Checking, checking who’s going to hurt me now? Who’s going to hurt me now? Who’s going to hurt me now? Those who have been photographed are also hypervigilant based upon the photographs. My patients tell me that when they go into the street they look at everyone they pass and say, “Did you see the pictures?” “Did you see the pictures?” “Did you see the pictures?” “Did you see the pictures?” They are constantly ruminating about who has seen those pictures.
So, that the arousing and the anxiety and the hypervigilance exacerbated by the fact that the pictures are there, you’ll see an exaggerated startle response in these individuals which is part of their arousal. You don’t want to come up behind them and put your hand on their shoulder they will jump. You’ll see that they can’t sleep and this is one of the — this is an arousal symptom as well.
You’ll also see that above and beyond the reexperiencing and the arousal, that they have avoidance problems. So, they will avoid anything that psychologically feels connected to the trauma.
For many of the victims, that means for decades they will avoid any kind of activity that’s sexual. Most of the victims will avoid males of all sorts. They will avoid the Internet. They will avoid anyone who is going to log onto the Internet, they have to leave the room. They will avoid using the computer. This is narrowing their options in life if they can’t be the on the computer, interact with males or have sex. They are also going to avoid movies, news stories, anything that might remind them of their experience. So, avoidance is a huge problem for these individuals.
These are some of the typical symptoms of post traumatic stress but there are also cognitive symptoms that show up. There are changes in beliefs, that when you rape and torture a child, that child is trying to develop a view of life. They’re trying to figure out what are the rules for living, what do I know about life, as they’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8691933. Public record. Not legal advice.