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Colorado Criminal Law: Child Pornography Possession Does Not Equal Sexual Assault On A Child – 18-6-403

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney

Colorado Criminal Law Child Pornography Possession Does Not Equal Child Sexual Assault On A Child - 18-6-403-2Colorado Criminal Law: Child Pornography Possession Does Not Equal Child Sexual Assault On A Child 18-6-403 – After years of escalating punishment in Colorado Sexual Exploitation cases it has been obvious to those who practice Colorado sex crimes law, that District Attorneys and Colorado Judges often blur – conflate – the critical distinction between those who possess images of child pornography and those who commit the crimes of sexually abusing children.

With the birth of the Internet and other technological advances, such as digital photography, the world has silently watched a dramatic increase in the availability of child pornography. There are no reliable estimates of the amount of child pornography on the Internet as the Net is too massive and changes too quickly to meaningfully rely on any one assessment.

The legislative response to this increase in child pornography has been uniformly harsh. Federal and state governments, such as Colorado, have drastically increased criminal penalties for the possession of child pornography.

While there is no question that the crime of the possession of child pornography (the crime of Sexual Exploitation Of A Child under Colorado law – C.R.S. 18-6-403) is a very serious offense, but the “moral panic” underlying our fears regarding the much more serious crime of sexual abuse involving children has resulted in the unjust punishment of low risk individuals of those who possess child pornography by including these offenders in the much more serious genre of sex offenders committing sex abuse crimes on children.

This broadening of criminal law categories is sometimes call “net widening.”

“Net Widening”

The concept of net widening applies, in this context, to the practice of Using a conviction for the possession of child pornography images as “a proxy” to punish assumed, but unproven and undetected child molestation by the possessor of the pornography.

For many in the Colorado criminal justice system on the prosecution and sentencing side of Colorado Sexual Exploitation – (18-6-403) cases, it is an unspoken belief that the possession of child pornography is a causative or correlative factor for actual sexual contact with children.

There is no actual empirical support or research that supports this commonly held belief.

The politics of fear regarding child sexual abuse dominates the discussion in this area of law and underlies what are often unreasonably punitive sentences in Colorado Sexual Exploitation Cases under C.R.S. 18-6-403.

The State Of Colorado’s Response To The Modern Increase Of Sources Of Child Pornography

As noted above, the argument that the penalties for possession of child pornography should be severe because to some it is a crime that is the equivalent to the act of sexually abusing a child is widely believed to underlie the unspoken policy basis for the severe treatment of those accused of the Colorado crime of Sexual Exploitation Of A Child under C.R.S. 18-6-403.

The argument is that the possession of child pornography must be punished severely because possession creates “an increased risk” that an individual will sexually abuse children, or that the prosecution of possession of these materials should act as a “proxy” (a substitute) for prosecuting those who sexually abuse children, is not only unjust and grossly unfair it is a violation of due process.

The assumption that those who possess child pornography also sexually abuse children and therefore should be punished for the crimes the State cannot prove, runs contrary to the fundamental basis of our criminal justice system. This approach permits the criminal punishment of individuals without any of the constitutional protections afforded to criminal defendants, such as:

  • the right to a jury trial,
  • the presumption of innocence, and
  • the requirement of proof beyond a reasonable doubt.

The facts are these – a recent study by the National Center for Missing & Exploited Children, for example, reported that in 84% of child pornography possession cases

No Empirical Evidence
“investigators did not detect concurrent child sexual victimization or attempts at child victimization.”

The fact is that the extreme availability of child pornography actually results in luring and entrapping many who have no real proclivity in this area to but act out of curiosity – to download the images.

  • it is estimated that 100,000 commercial websites offer child pornography.

  • more than 20,000 images of child pornography are posted on the internet every week.

  • child pornography is one of the fastest growing online businesses generating approximately $3 billion ($3.43 billion) each year.

  • child pornography is a $20 billion industry worldwide.

  • approximately 20% of all Internet pornography involves children. [As of 10 years ago – 2008]

There Is No Question That Colorado’s Crime Of Sexual Exploitation Of A Child Is Serious And Should Be Punished

The point of this article is not to argue that the crime of Sexual Exploitation Of A Child is not a serious matter. It is clear that the principle harm associated with possession of child pornography is the child sex abuse involved in the creation of the pornographic images.

The private possession of child pornography may create a market for the creation of such images.

The Colorado State Legislature made clear in 2006, when the punishment for Sexual Exploitation of Child 18-6-403 – was increased – the reasons for that change.

The preamble to the statute should be read to understand the intent of the law:

18-6-403. Sexual Exploitation Of A Child.

(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child’s right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child;

  • that each time such material is shown or viewed, the child is harmed;
  • that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse;
  • that laws banning the production and distribution of such material are insufficient to halt this abuse;
  • that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and
  • that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.

However, the reality is this – the possession of child pornography is NOT equivalent to, or worse than, the crime of child sexual abuse.

The Danger Of Blurring The Line Between Classes Of Crimes

You see it in the eyes of the Judge at sentencing or the District Attorney prosecuting the case. They may not be aware of their unspoken bias – to punish a Defendant who possess child pornography for the unproven crimes of sexual assault. Our society blurs the line between the possession of child pornography and child sex abuse.

This kind of blurring is not unique to the criminal justice system – but it is inconsistent with fundamental notions of fairness and justice and it is wholly unsupported by all of the research and empirical evidence in the field.

Blurring the line between the possession of child pornography and child sex abuse perpetuates the many misperceptions regarding both the personal relationships involved in child sex abuse and the actual prosecution of child molesters by law enforcement in their constant fight against sexual and other forms of child abuse.

One Crime Should Not Be Unfairly Conflated With Another
“Focusing on child pornography allows us to ignore the messy and tragic realty of child sex abuse namely, that the majority of these crimes are committed by those who know and care for the child they are abusing rather than by strangers.”

The Increase In The Severity Of Punishment In Child Pornography Cases Since The 90’s

Since 1990 the Federal Government and almost all of the states have significantly increased their penalties for crimes relating to the possession of child pornography. All 50 states have specific laws criminalizing the possession of child pornography and thirty states have increased the penalties available for the possession of child pornography.

This pattern of increasing the severity of the punishment for this crime has made clear to those who practice law in this area that proportionality in sentencing has become a virtually meaningless constitutional principle when it comes to this area of prosecution.

In 2006 Colorado, enacted H.R. 06-1092, (65th Gen. Assem., 2d Reg. Sess.) Which reclassified possession of child pornography from a misdemeanor to a felony and later enhancing the penalties based on the number and type of images that are found in the possession of the Defendant.

Why Correlation Does Not Prove Causation

As noted, it is unjust to treat the two offenses – the possession of child pornography and sexual abuse of a child – as equivalent crimes. This ignores any proportionality in sentencing.

The idea of equating the two offense stems from a theory of sentencing law known generally as “preventative punishment.”

Preventative punishment theory seeks to punish based on the risk of harm as opposed to harm that has already occurred. The theory, as applied in this area, is the policy argument that the simple possession of child pornography increases an individual’s risk of sexually abusing a child and therefore much longer sentences are necessary to incapacitate these individuals and eliminate any future opportunity to commit a sexual contact offense.

While punishing certain criminal behavior in order to avoid the risk of future crime is established in modern criminal law – there is little or no empirical support demonstrating that significantly increasing sentences for possession of child pornography will lead to an increase in child sex abuse.

The empirical literature does not validate the widely held assumption that there is a causal connection between possession of child pornography and child sex abuse. There is no reliable published data on the future offending of the possessors of child pornography. The evidence simply does not support the reasoning underlying preventative punishment theory.

Comparing Adult Sex Crimes – By Analogy

Adult pornography also dominates the internet yet, the dramatic increase in the availability of adult pornography has not led to increased rates of sexual violence. The contrary is true. Incidents of rape have declined since the early 1990s and have remained stable in recent years, according to the Department of Justice, Bureau of Justice Statistics

Unjust Sentences And “Proxy Punishments”

The proxy punishment argument is another attempted justification for overly punitive sentences for those convicted of possessing child pornography. Here the belief is that all possessors of child pornography must have also committed a past child sexual contact offense for which they were never charged.

The proxy punishment argument (unlike the preventative punishment argument which justifies lengthening child pornography possession sentences on the grounds that it reduces the risk of future instances of child sex abuse) justifies longer more punitive sentences on the theory that such sentences penalize past – undetected instances of child sex abuse.

The theory is as follows:

Proxy punishment is imposed when three conditions are met:

(a) the “real” (i.e., more serious) crime is too difficult to prosecute,

(b) the “proxy” (i.e., less serious) crime is easier to prosecute, and

(c) those who are committing the “proxy” crime have also committed the “real” crime.

Those who try to justify proxy punishment in child pornography cases believe that the possessors of child pornography must also have a history of contact offenses even if there is a complete absence of any evidence supporting the belief.

Public officials argue that the possessors of child pornography are “predators” or they may use other similar terms that reflect sexual contact offenses when referring to those convicted of the possession of child pornography.

Punishing One Person For The Crimes Of Another Is Wrong

Proxy punishment means this – while there may be some Defendants who possess child pornography who may also abuse children, we must not, we cannot punish, all possessors of child pornography for such abuse without proving that they have actually committed the more serious crime of sexual assault on a child.

Summary And Conclusion – Colorado Criminal Law: Child Pornography Possession Does Not Equal Child Sexual Assault On A Child – 18-6-403

While the public may cry out and support long sentences for those convicted of the possession of child pornography out of a sense of disgust or a strong need to condemn those who look at child pornography, clear lines must be drawn that distinguish the much more serious actual contact sex offenses against children from the less serious crime of the possession of child pornography making certain that there is proportionality at the time of sentencing.

Colorado Criminal Law: Child Pornography Possession Does Not Equal Sexual Assault On A Child – 18-6-403

If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2018) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).

The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

H. Michael Steinberg Best Colorado Criminal Defense LawyerABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 36 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 36 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law: Child Pornography Possession Does Not Equal Sexual Assault On A Child – 18-6-403.

Summary
Colorado Criminal Law: Child Pornography Possession Does Not Equal Sexual Assault On A Child - 18-6-403
Article Name
Colorado Criminal Law: Child Pornography Possession Does Not Equal Sexual Assault On A Child - 18-6-403
Description
After years of escalating punishment in Colorado Sexual Exploitation cases it has been obvious to those who practice Colorado sex crimes law, that District Attorneys and Colorado Judges often blur - conflate - the critical distinction between those who possess images of child pornography and those who commit the crimes of sexually abusing children.
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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
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