Debate regarding child pornography laws

While laws criminalizing child sexual abuse now exist in all countries of the world,^[1][2] more diversity of views exists on questions like exactly how young those depicted in pornography should be allowed to be, whether the mere possession of child pornography should be a crime, or whether sentences for such possession should be modified.

Specific laws

In 1999, in the case of R. v. Sharpe, British Columbia's highest court struck down a law against possessing child pornography as unconstitutional.^[3] That opinion, written by Justice Duncan Shaw, held, "There is no evidence that demonstrates a significant increase in the danger to children caused by pornography," and "A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography." ^[4] The Opposition in the Canadian Parliament considered invoking the notwithstanding clause to override the court's ruling.^[5] However, it was not necessary because the Canadian Supreme Court overturned the decision with several findings including that viewing such material makes it more likely that the viewer will abuse, that the existence of such materials further hurts the victims as they know of its existence and that the demand for such images encourages the abuse.^[6]

In the United States, some federal judges have argued that the U.S. Sentencing Guidelines' recommended penalties for possessors of child pornography are too harsh.^[7] Judge Jack B. Weinstein of New York criticizes the mandatory sentence for possession of child pornography as often higher than the penalty for actually committing the act of child abuse it depicts. Furthermore, child pornography prosecutions have led to dozens of suicides, some of them among the innocently accused.^[8] The requirement that people convicted of possessing child pornography pay restitution has been criticized by some judges and law professors. This has been particularly controversial in cases involving millions of dollars of restitution, as in those pertaining to the Misty Series.^[9] But in 2010, the US Ninth Circuit Court of Appeals ruled that restitution directly to depicted minors was an appropriate penalty for possession of child pornography.^[10]

During the nomination process at the 2008 Libertarian National Convention, anarcho-capitalist and U.S. Presidential candidate Mary Ruwart came under fire for her comment in her 1998 book, Short answers to the tough questions, in which she stated her opposition not only to laws against possession of child pornography but even against its production, based on her belief that such laws actually encourage such behavior by increasing prices.^[11] Shane Cory, on behalf of the minarchist United States Libertarian Party in his role as executive director, issued a response saying, "We have an obligation to protect children from sexual exploitation and abuse, and we can do this by increasing communication between state and federal agencies to help combat this repulsive industry. While privacy rights should always be respected in the pursuit of child pornographers, more needs to be done to track down and prosecute the twisted individuals who exploit innocent children."^[12] Cory resigned after the party refused to vote on a resolution asking states to strongly enforce existing child porn laws.^[13]

References

1. Levesque, Roger J. R. (1999). Sexual Abuse of Children: A Human Rights Perspective. Indiana University Press. pp. 1,5–6,176–180. The world community recently has recognized every child's fundamental human right to protection from sexual maltreatment. This right has been expressed in recent declarations, conventions, and programs of action. Indeed, the right to protection from sexual maltreatment is now entrenched so strongly in international human rights law that no country can relinquish its obligation.
2. "United Nations Convention on the Rights of the Child". Office of the United Nations High Commissioner for Human Rights. 1989. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse... States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.
3. Canada Court Quashes Child-Porn Law, AP Online, 06-30-1999
4. Top B.C. court strikes down child-porn law, The National Post, January 16, 1999
5. Judicial Activism in R. v. Sharpe: An Administration or Perversion of Justice?, Rev. Current L. & L. Reform, 2000, pp. 14
6. R. v. Sharpe (26 January 2001). 1 S.C.R. 45, 2001 SCC 2. Retrieved February 20, 2006.
7. Federal judges argue for reduced sentences for child-porn convicts, The Denver Post, November 29, 2009
8. Cruel child porn laws kill, "destroying lives unnecessarily” (Judge Jack B. Weinstein)
9. John Schwartz (February 2, 2010), Child Pornography, and an Issue of Restitution, New York Times
10. U.S. v. BAXTER
11. Nathan Thornburgh (May 21, 2008), Can the Libertarians Go Mainstream?, Time
12. Libertarians call for increased communication to combat child pornography
13. McCain, Robert Stacy (May 23, 2008), Fear and Loathing in Denver, The American Spectator