If you are concerned about the protection of American children from the scourge and epidemic of child pornography, the Court’s latest oral argument in a related case should give you pause. Yet another technicality is going to benefit the one with the child pornography, i.e., the one who keeps the marketplace thriving, and the safety of our children remains at risk.
Federal agents discovered that Avondale Lockhart possessed 15,000 images of child pornography and nine child porn videos. He also sexually abused his girlfriend. The question in the case was whether the sexual abuse of an adult (as opposed to a child) counted toward increasing his sentence for the child pornography. The statute allows an enhanced penalty for a crime “related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
The debate during the oral argument focused, as it should have, on statutory interpretation and what canons controlled. The short story in this case is that the statute is painfully ambiguous whether it enhances child porn sentences where the perpetrator sexually abused anyone or the victim had to be a child. Its very ambiguity led Justice Antonin Scalia to suggest the following:
“I have no assurance what the right answer is. . . . And if that’s the case, it seems to me the rule of lenity comes into play.”
In other words, if a criminal statute is not clear, the rule of interpretation is to err on the side of leniency toward the defendant. Justices Anthony Kennedy and Samuel Alito also pursued a “rule of lenity” line of questioning. The statute is so unclear that Justice Elena Kagan asked about how to interpret the language and by the end of her question wasn’t sure if she had proven her point or disproved it! Frankly, reading the language, I give her credit for trying.
The discussion of the rule of lenity shows our adult focus on the adult in front of us, while the suffering of millions of children past and present, which is what this statute is dealing with, yielded barely a mention.
The sense of the courtroom seems to have been that the Justices will likely rule in favor of porn fan and adult sex abuser Lockhart. If they are incorrect in their interpretation, Congress needs to amend the statute.
This feels a lot like déjà vu and Paroline v. United States, from last Term, which I discussed here wherein the Court read the language of the Mandatory Restitution for Sexual Exploitation of Children Acth narrowly. The result tipped the scales in favor of the porn industry and against the victim. The Court held that the victim of child pornography could not recover all damages for the pornography against a “mere” possessor of the images. Again, the Court was engaging in statutory interpretation, and gravitated to the result that protects the porn defendant. Unfortunately, Congress has had pending legislation almost since Paroline was decided to fix the problem and ensure child porn victims are compensated fairly, but politics has kept the amendments away from the statute.
Yet, it is also reminiscent of Congress’s failed attempts to protect children from child pornography in Ashcroft v. Free Speech Coalition and Reno v. ACLU. Those cases involved successful First Amendment attacks on the Child Protection Pornography Act of 1996 and the Communications Decency Act, respectively.
These cases show, once again, even when there is extraordinary harm and risk to children, the legal system prefers the adults who are putting those children at risk. On the one hand, it is the rule of law that does not permit one’s sentiment in favor of protecting children from porn to dictate all case results, but on the other hand, isn’t the elimination of the cancer of child porn worth it? Can’t we agree that child porn is so valueless that the government’s interest in protecting children is so strong that the Court should err on the side of child protection, whether it is engaging in statutory interpretation or First Amendment rights? It would do so if race were involved.
In New York v. Ferber, the Supreme Court held that child porn involving the abuse of actual children was subject to no First Amendment protection. It was simply not speech that matters. Given the fact that those who view child porn are more likely to attempt child sex because the porn normalizes the acts, its eradication should be treated as a per se highest government interest. Therefore, there should be wide latitude for Congress as it attempts to stamp it out.
In this new era, though, the Court accords itself plenty of power to second-guess Congress in a wide variety of arenas, including the prevention and punishment of child pornography.