IN 2002, Arizona school teacher Morton Robert Berger became the latest in what has become a very long line of men accused of child pornography possession.
Investigators found a large collection of images that he had amassed over the previous six years. He was charged with 35 specimen counts of sexual exploitation of a minor with each charge relating to one image. Of those charges, 15 were dropped and Berger was convicted by a jury of the remaining 20 counts against him.
For each of those counts – equivalent to one image – he was sentenced to 10 years in prison. That is a total of 200 years.
The judge ordered the sentence be served without the possibility of probation, early release or pardon.
Berger’s defence team argued that the sentence constituted “cruel and unusual punishment” pointing out that if he had murdered or raped a child, he would not have received such a long sentence.
Nonetheless when the case was forwarded to the Supreme Court it upheld the sentence saying each image constituted a dangerous crime against children.
Now compare that sentence to that which was handed down to “pornography addict” Sam Wiltshire last month by Dublin Circuit Criminal Court.
Wiltshire was caught with more than 1,000 images and videos of children being raped and posing naked. He printed off more than 200 child pornography images in the photo developing shop where he worked. Gardaí also found he was sharing images over peer to peer networks using programmes such as “Limewire”.
Wiltshire admitted downloading the files but said he believed some of the children depicted in them were over 18. He said he was “addicted to all types of pornography” and “hoarded” everything he found on CDs.
A holdall bag was also found at the rear of his house which contained 210 developed photos of naked children.
While most of the pictures were of children aged 11 to 15, images and videos found by the garda computer crime investigation unit showed children as young as seven. Some of the videos showed adults raping young children, including oral and anal rape.
In spite of that, when he was hearing the case, Judge Tony Hunt said most of the child porn material seized by gardaí had been at the lower end of the seriousness scale. He also credited the fact that Wiltshire had come from a respectable family. Therefore he sentenced him to three years in prison but suspended the entirety of it.
Is the sentence of the American above overly harsh? Or is the sentence of Wiltshire far too lenient?
One thing that is certain is that the penalties handed down for possession and distribution of child pornography in this country is consistently lenient by international standards. It is not that the laws themselves are weak.
The Child Trafficking and Pornography Act, 1998 allows for sentences as high as 14 years for the production or distribution of indecent images of children. The maximum penalty for possession of such images is a fine not exceeding £5,000 or imprisonment for up to five years.
Yet a Welsh man convicted of the former more serious charge only received six years in prison even though he was found with, amongst other things, images which he had got a seven-year-old girl to take of another girl of less than 10-years-old masturbating him.
Christopher Thomas admitted sexually assaulting two girls at his home on various dates between January 2003 and November 2004 when he appeared before Cork Circuit Criminal Court in July of this year.
He also pleaded guilty to knowingly producing child pornography and possessing the child pornography.
On some occasions the victims, aged between nine and 11 were paid up to €30 for taking off their clothes and having photographs taken.
Thomas also removed his own clothes and posed with two girls – aged eight to nine – got one of them to masturbate him and then got a seven-year-old girl to take photographs.
More than 100 images were found of girls in sexual poses and sexual acts. Not all of the images were of the three children referred to in the case. The age of the rest ranged from as young as two up to 16.
The Child Exploitation and Online Protection Centre deals with child pornography on the internet from around the world on a daily basis.
It is of the opinion that custodial sentences have to be a response to crimes involving indecent images of children.
“It’s important for each case to be dealt with individually and on its own merits, remembering that the victims are the children who are being sexually abused,” a spokesman said. “The police and the judicial system have responsibility to hold offenders to account and of course, custodial sentences will undoubtedly act as a deterrence to those who have a sexual interest in children and believe they evade justice.”
However, from the start it appears the Irish judicial system just has not been prepared to follow a hardline in punishing the crime.
The treatment of one of the first men convicted of possession of child pornography in this country, Alan Crosby illustrated that point.
The Ballbriggan native was convicted on January 2, 2002 of possession of child pornography at Castlelands, Balbriggan, on May 27, 2002. He had taught art and design at Colaiste Dhulaigh in Coolock.
In sentencing him to nine months’ imprisonment, with the last three months suspended Judge Sean MacBride described child pornography as the “work of the devil” which, he said, led to the “exploitation and ruination of young lives”.
“The court must protect young children no words in the English language can describe the abuse of a child,” he said. “These images are the work of the devil and must be condemned by right-thinking people.”
However, two years later, Crosby had his sentenced suspended when Judge Patricia Ryan at the Court of Criminal Appeal ruled that he was at “low risk” of re-offending.
It must be pointed out that, while sentencing has been lenient, gardaí have been highly active in trying to track down offenders.
In May 2002, some 500 officers took part in synchronised dawn raids in almost every garda division in the country.
More than 110 searches were carried out in homes, businesses and offices and about 140 computers, as well as a large number of CDs and discs, were taken away for analysis.
Among the homes raided were those of a barrister, solicitors, the owner of a children’s fun park, school headmasters, a librarian, a banker, a choirmaster, a health board official and a chief executive of a large company.
As well as their own patient surveillance, the officers were acting on information provided to them by the FBI as well as Interpol.
It is estimated about 100 charges were brought as a result of Operation Amethyst and there were at least 40 convictions.
However, in spite of the high profile nature of the operation, there were few significant prison sentences handed down. In fact in two of the most high profile cases, neither man served prison time.
In the case of Tim Allen of the highly successful Ballymaloe cookery empire, he was only sentenced to 240 hours’ community service and ordered to pay €40,000 to a child welfare charity.
Since Operation Amethyst there have been hundreds more cases of child pornography possession and distribution brought before the courts but few have received as much prominence as one of the most recent.
The case of 54-year-old David Ivers, a former architectural technician with Cork City Council, hit the headlines not only because of the depravity of the images but also because of the exceptionally lenient sentence which was handed down to him.
Ivers, a single man from Rathcoursey in Midleton, Co Cork was found to have downloaded 13,845 images of child pornography including 10,240 depicting naked children, some as young as one and many aged between one and six.
One of the Garda detectives who had to view the images said they were “grossly offensive” and were some of the worst content he had ever seen in more than 200 cases which he had investigated.
Gardaí told the Circuit Criminal Court in Cork that the offence had come to light after the operator of a German website reported a violation of child pornography laws to the German police who then contacted gardaí.
Gardaí searched his elderly mother’s house on September 10, 2007, and seized the computer which Ivers later revealed he had been using for three years to download child porn.
The judge in the case Patrick Moran said he had viewed a sample of the images and found them deeply disturbing as they depicted young children being severely violated and abused and he said he could not ignore the effect of this type of exploitation of young children for financial gain.
However, in spite of the gruesome evidence and the fact that the children had been so violated, the judge said the view he had on sentencing after seeing the images was “melted” somewhat by the background reports on the defendant.
He said as well as taking into consideration the steps Ivers took to address his problems, the garda view that he does not pose a risk in the community, his suicidal tendencies in the past and the fact that he looks after his elderly mother, the judge imposed a four year suspended sentence.
Again returning to the US, the concept of leniency takes on a whole new meaning there.
When 288 child pornography images were found on a Navy lieutenant commander’s computer the US attorney’s office pushed for an almost six-year prison sentence. John J Hall blamed his actions in part on post traumatic stress order developed while serving in Iraq. The judge in the case took that into account but still sentenced him to more than three years in prison. That was considerably less than the federal recommended guidelines in the country.
One loophole identified by anti-child pornography campaigners in this country is that while it is a criminal offence to download child pornography, it is not an offence to view it, as computer users could have accidentally come across the website.
Those found to have viewed the material can claim at present that they were looking for something else and the images popped up or the pornography website they were looking at made the claim that all those on its pages were over 18 years of age. However, that leaves a wide gap for those who have paedophilic tendencies to make excuses for their behaviour and to continue to exploit children.
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