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The advancement of technology has facilitated the distribution and possession of massive quantities of child pornography, over half of which includes content of infants and toddlers, said a report by the U.S. Sentencing Commission (USSC) on non-production offenses of child pornography released Tuesday. 

The USSC analyzed federal case data from FY19 for the report, specifically looking at the content and nature of the pornography, if the offender was involved in any community or internet forums with other child pornography offenders and if the offender also partook in any other “sexually abusive or exploitative conduct” before or during their child pornography offense.

The report focuses specifically on non-production offenses of child pornography, which the Commission describes as the possession, receipt or distribution of child pornographic content.

The Commission said that a report focusing on production offenses of child pornography will be released at a later time.

The median number of images in non-production child pornography cases in 2019 was 4,265 and 73.2 percent of cases included both photos and videos, said the report. Some offenders were responsible for millions of photos or videos.

While technology advancements have changed the scope of child pornopgraphy offenses, legislation lags behind.

The PROTECT Act of 2003 2G2.2 contains enhancements that target certain child pornography offenses thought to be more egregious than others, therefore receiving a longer or more harsh sentence. While important, some enhancements are outdated, said the Commission.

For example, a couple of the enhancements outlined in the report included the use of a computer to spread pornographic content or the number of photos or videos distributed, both of which are much easier and more common with today’s technology than they were when the enhancements were created.

As a result, sentencing guidelines increased.

 “The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019,” said the report.

While the actual average sentence didn’t increase as extremely as the average guideline minimum, there was still an increase from 91 months to 103 months from FY05 to FY19.

“Although the difference between the average guideline minimum and average sentence imposed has remained somewhat stable since fiscal year 2014, the long term trend shows that most courts believe §2G2.2 is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case,” said the Commission. Even with sentencing guidelines increasing, 59 percent of offenders ultimately received a sentence that was below the recommended sentencing guideline.

The advancement of technology also affected participation in online community groups or forums with other offenders. According to the report over 43 percent of offenders were a participant in an “online child pornography community.”

Some 48 percent of offenders also committed some sort of “aggravating sexual conduct” before or at the same time as their non-production offense in 2019, a 12.9 percent increase from 2010.

An offender participating in an online community with other offenders or who committed separate aggravated sexual conduct received longer sentences than non-production offenders who didn’t. Due to the outdated sentencing guidelines, sentences for offenders varied widely. 27.6 percent of offenders released in 2015 were also rearrested by 2019.

Although non-production sexual pornography cases are less common in comparison to the other federal crimes reported to the commission, they continue to be held to a high importance because of their possibility to “normalize the sexual abuse of children and may promote existing tendencies towards sex offending and the production of new images,” said the Commission.

“Although non-production child pornography offenses make up only a small portion of the federal caseload, interest in their penalty structure remains heightened because of the nature of these offenses, the harm to the victims, and their high variance rate compared to other federal offenses.”

According to the report, 99.4 percent of non-production offenders from FY19 were men with an average age of 41 years old. 80.3 percent were white. The report is the Commission’s first update since its report to Congress in 2012. “Even though the key factors identified in the 2012 Child Pornography Report influence sentences, they cannot be considered in a sufficiently uniform manner in the absence of a properly calibrated guideline that jettisons outdated factors,” said the Commission.

Access the full report here.

Emily Riley is a TCR Justice Reporting intern

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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