WHAT is an acceptable sentence for the possession of child pornography?
Analysis by Stephen Rogers
That’s downloading and viewing the images, not being physically present when the abuse was carried out and the images made.
Consider two cases which progressed through the courts on opposite sides of the Atlantic within a year of each other.
In May, a British national, Simeon Betts, appeared in court in Ireland charged with a stash of child pornography which included 50 videos.
The material found on three laptops included the rapes of children as young as four, and gardaí said the level of abuse was of the “upmost scale”. Adult males were filmed raping the children, and in one instance an animal also featured in the abuse.
For the possession of such sickening material, Betts, aged 45, was sentenced at Limerick Circuit Court to four years in prison, with the final two years suspended.
Now consider the case of Daniel Enrique Guevara Vilca, a 26-year-old who appeared in a Florida court room in November.
Vilca had been caught with a significant stash of images — he faced 454 counts.
Some of the videos and pictures showed boys aged between six and 12 years engaged in sexual activity with adults and each other.
For possessing the images, Vilca was sentenced to life in prison without the possibility of parole.
As was noted in the New York Times after the sentence was handed down, if Vilca had actually molested a child himself, he might have got a lighter sentence.
These two cases show the extremes in which different jurisdictions view the crime of child pornography — and how the leniency or severity are both subject to significant scrutiny among their populations.
In America, the US Sentencing Commission is reviewing the sentencing guidelines for the crime. A survey of the country’s federal judges even found that 70% thought the sentences were too high. Many possession offences in the US carry a minimum tariff of five years and the average sentence handed down is seven years.
Here, sentencing for child pornography crimes falls under the Child Trafficking and Pornography Act, 1998. That legislation states that, for producing or distributing child pornography, the maximum sentence is 14 years in prison. For possession, the maximum sentence is five years.
Children’s organisations such as the Irish Society for the Prevention of Cruelty to Children have long argued that the sentencing for child pornography crimes does not match the offence.
The ISPCC points out that each picture or video represents an instance of child abuse and a crime scene. It says the people who seek out and view the images are effectively paying someone, somewhere, to abuse a child.
Yet, it says, the majority of sentences handed down by the judiciary system in this country are suspended, with the implementation of a fine. Custodial sentences are rare, and short.
ISPCC policy officer Lisa Collins recently wrote: “In addition, the ‘respectable home’, ‘good family’, and ‘out of character’ argument is often laid out by the defence. This social intervention has... too often been accepted by judges as mitigating factors. This was most evident in the case of Sam Wiltshire.
“Sam, a self-confessed ‘porn addict’, was caught downloading and sharing over 1,000 images and videos of children, as young as seven, being raped and posing naked. However, Judge Tony Hunt said most of the images were at the lower end of the seriousness scale. He also credited the fact that he came from a respectable family. He was given a three-year suspended sentence in 2009.”
One of the most high-profile rulings came in 2003 when Tim Allen, husband of celebrity chef Darina Allen, was sentenced to 240 hours of community service and ordered to make a €40,000 contribution to a charity for street children after he pleaded guilty to possessing child porn images.
The judge in the case, Michael Pattwell, recently said he was “slaughtered” by the public over the sentence.
And in an interview with the Evening Echo newspaper, the retired judge pointed out that the images he had to deal with “were very much in the level 1 category, the number was relatively small, and there was not the slightest suggestion that they were for other than personal use”.
“The recommended sentence at the time for ‘possession of a large amount of level 1 material and/or no more than a small amount of level 2, and the material is for personal use and has not been distributed or shown to others’ was a community order or a fine. In fact, in the case before me, the seriousness of the offence could be classified as even lower than that. They were all level 1 images and the number was quite small.”
One question which has long been posed not just about child pornography but also about adult material and violent imagery in general, is whether or not it raises the likelihood of a user seeking to attack someone in real life.
In the case of notorious paedophile and former priest Oliver O’Grady, the detection for the possession of a massive collection of child pornography came after his detection for child abuse offences.
O’Grady admitted to molesting as many as 25 children while a parish priest in California. He served seven years in jail for molesting two brothers before being released in 2001. He came to the public’s attention once more when he admitted in the 2006 US documentary Deliver Us From Evil that he was still a danger to young children and was still sexually aroused by them.
At the end of 2010, O’Grady was arrested after thousands of explicit images of children were discovered on computers and USB drives belonging to him. Some of the material depicted victims as young as two. Gardaí also found over six hours of child pornography videos and over 500 pages of online discussions on the subject of child pornography.
They also found an audio file which began with O’Grady discussing religious matters, but after several minutes he began discussing the sexual abuse of a male child before returning to the topic of religion.
Despite the seriousness of the material, the judge in the case still found mitigation, this time for O’Grady’s early guilty plea and his limited co-operation with gardaí. He jailed O’Grady for three years.
Undoubtedly, the worst offence, apart from actually sexually abusing and filming the attack on children, is distributing the material to a wider audience.
The fact is that, with new methods of distributing material being developed continuously, the detection of those sharing child pornography is getting harder. Distributors are using increasingly sophisticated techniques to conceal their online activities.
Methods include the increased use of web facilities such as “cyber lockers” (an online site for storage of personal digital files) and use of peer-to-peer networks, where files can be shared directly between users.
Mayo man James Clarke used such a peer-to-peer file-sharing network to distribute images.
The 57-year-old, who is due to be sentenced next month, had 135,555 files stored on a computer in Aug 2010. The images showed severe child sex abuse involving bondage, cruelty, and bestiality. Some of the children involved were only infants.
Gardaí told the court Clarke was using Gigatribe, a legitimate peer-to-peer file-sharing network site which has been likened to Facebook, to distribute the images.
One officer said the volume of material was “the largest collection of child porn” he had ever found up to that date.
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