December 3, 2006

Kurt Eichenwald is like so gonna kick his ass

laura-nubiles-long-legs.jpg My good friend Randy Cohen is inviting a shitstorm and a half with his latest Ethicist column. For reals, this is gonna make the Great Jewstorm of '02 look like nothing.

And this time, I'm afraid to say, he deserves at least some measure of what he's got coming.

The column concerns an IT guy who found porn on his boss's computer — "including some of young children — clearly less than 18, possibly early teens." The guy wants to know if he must call the cops.

Randy says no.

Before I get to where he's wrong, I want to say that Randy deserves heaps of credit for not buying into the kiddie-porn hysteria that generally grips the media. And he actually begins with an argument against blowing the whistle that is very strong: "The situation is too fraught with uncertainty. These photographs might depict — legally — not children but young-looking adults." That the letter writer describes teenagers as being "young children" indicates to me that he's not the best judge of pr0n, so Randy is absolutely right to note that there's a chance — a very good chance, I'd say — that these kids are in fact legal adults. The girl in the picture above sure looks to me like she's under 18, possibly early teens, but the photo comes from an established softcore site with 2257 compliance. The very fact that the boss's porn is of the barely legal variety indicates to me that it is just that: legal. There are so many 18 and 19 year olds who can play 15-16 that (to the best of my limited knowledge) there's really not many pornographers making illegal pictures of genuine 15-year-olds. Why take the risk? (Randy also argues that "the images could be digitally altered," but that seems less likely, in part for the same reasons).

So if your takeaway from this column is simply, don't call the cops, then Randy is correct. This is a weak hunch that is not worth ruining someone's reputation and career over.

But then Randy attempts to deal with the broader ethical issues, and makes the argument that the law shouldn't be involved even if there was some way to verify that the pictures did depict underage teens or children: "Your boss may have acquired free (albeit illegal) images rather than bought them and provided a financial incentive to those who harm children. Someone other than your boss may have downloaded the pictures."

Sorry, but once you can prove that actual minors are involved, the balance of responsibility shifts. Yes, the boss may not be the culprit, and he may not have paid for the pictures — but that just means that maybe he is and did. Which means that there's a chance, however slim, that calling the cops could lead to the rescue of actual victims or capture of actual pornographers. At this point, that outweighs the risk to the boss. Hey, you download kiddie porn on the company computer, you deserve to have your reputation and career ruined.

Then Randy goes on to question the whole idea that possession of child porn should be illegal: "Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing, describes the rationale for these laws: 'We punish the kind of possession many concede is not inherently harmful but which contributes to behavior which produces much harm.' (In the longer podcast version, the quote continues, 'The criminalization of child porn consumption is premised on contestible utilitarian calculations.') That is, by stopping buyers, even those who have had no contact with an actual child, we hope to stop sellers, who do exploit children. Is this effective? Tough to prove."

First of all, "tough to prove," isn't the strongest argument. Yes, it's tough to prove, but it's equally tough to disprove, so all things being equal why not err on the side of preventing harm (sorry, preventing contributions to behavior which produces harm)? This debate has already been settled in the minds of lawmakers and the vast majority of Americans. If Randy or Berman want to reopen it, fine, but they're going to lose, and I'm not sure they shouldn't. If the boss had videos of a grown woman being violently raped, or of a child being beaten, I'd want him held responsible even if he didn't commit the crime itself. There's a larger benefit to society to not actively condoning rape and child abuse (which is what kiddie porn is) and despite Doug Berman's contesting, there's a reasonable chance that punishing people for possession will impede the networks by which such images are distrubted, which would in turn reduce the incentive to commit the initial crime. You break the chain where you can.

The fact that the scope of the child porn biz is overblown, that punishments are sometimes excessive, and that (as Randy also says in the podcast) spending money and resources going after it reduces our ability to combat more widespread economic exploitation of children, does not mean that when it does crop up it should just be ignored.

Update: Apologies to any Gawker readers who came here looking for an evisceration only to find a combination of qualified agreement and respectful disagreement. You know how those crazy kids like to sensationalize everything. Hey, at least you got a link to a teen porn site.

Posted by Daniel Radosh


Good comments there.

I went to the podcast.

Found it kind of an unfortunate coincidence that this particular podcast is brought to you by "The History Boys," a film which deals with a similar subject matter. Or maybe that's just NY Times synergy?

i agree with you, except... what about making the same argument for drugs? crack down on the users because you can't get to the dealers?

Slutwench, you ingorant slut (wench). Drug use is a victimless crime.

To expand on Dan's (much funnier) response:

The correct analogy to drugs is the reverse: you crack down on the dealers because you can't find all the users. The purported victims of drug use are the users themselves; the dealers and producers are merely facilitating that use. If a farmer grows marijuana or poppy for fun (or a chemist produces LSD just to see if he can) and then destroys the drug without using it, no one is harmed. But there is harm in forcing children into pornography, regardless of whether the resulting images are ever made public.

Also, for drugs you can probably get to the dealers more easily than the users, since the dealers are generally carrying around large quantities of their product, while the users are disposing of the product soon after purchasing it. For child porn, it's equally difficult to find producers, distributors and consumers, so when you stumble across someone who may be able to lead you to the producers, you have to take advantage of the opportunity.

"Early teens" generally means 13 or 14, not 15 or 16, in most people's parlance, yes?

I feel that you are oversimplifying things a bit here.

1) You write as if being searched for the possesion of "kiddy porn" causes no harm to the "accused" if he/she turns out to be innocent. In most cases it will not be illegal porn, and the accused has done nothing wrong, but still this person will probably lose his/her job, friends, family and be stigmatized for life.

I can not find it acceptable to sacrifice some innocent people to prevent some harm to another person.

2) Almost all material classified as "kiddy porn", has never harmed anyone. In my country, Norway, child-porn is "the sexualization of a person under the age of 18". So a lot of the pictures teens put out on Myspace or Norwegian sites similar to hotornot.com (www.penest.no, www.deiligst.no), are legally classified as child porn because they "sexualize" a minor. The age of consent is 16, so you can have sex with a 16 year old, but not look at a picture of a 17 year old girl posing erotically in a bikini. According to the law even a picture of a girl aged 20 having sex can be classified as child porn if she looks like a minor. In addition lots of so called kiddy porn is nudist-pictures or innocent family photos where no person has been harmed in the making of the material. Is it then OK to stigmatize and ruin the life of a whole lot of innocent people because the laws are so vague that the enjoyment of pictures that have never harmed anyone has been made punishable?

I am all for punishing people who produce, sell or distribute child pornography or any material where people are being harmed. But I cannot accept the mentality that we should be OK with a lot of innocent people having their lives ruined because we are so hysterical about the child porn phenomena. Real child porn, where minors are being used sexually against their will on images or film, is so scarce that we must be extremely cautious not to cause more harm in the process of fighting this problem than the problem itself represents.

Mr. Tjomlid, you wrote:

"Real child porn, where minors are being used sexually against their will on images or film, is so scarce..."

Child porn is equally illegal if the minors are participating willingly, because they are too young to give informed legal consent.

Gunnar. I think you didn't read my post carefully. Or at all. My very first point was that this person should not call the cops because the porn he saw was most likely legal and his suspicion did not justify ruining his boss's life.

The rest of my post dealt with a hypothetical situation in which there was no doubt that the pictures were authentic child pornography -- and I meant under US laws, which are not (yet) as ridiculously broad as you say Norwegian ones are.

I've said many times on this site that the hysteria over child porn is a waste of resources and a threat to innocent (or actually innocent) people. None of which means, I'll repeat, that actual child abuse, when it does crop up, should be ignored.

Jupiter: In this context, I read Gunnar's use of "against their will" to imply not that children can consent to sexual activity but that pictures taken of unknowing children doing innocent things (e.g., sunbathing) can be eroticized by the viewer without any danger to the child.

In response to Dan's comment to Slutwench: Recreational drug use may not directly harm anyone, but you're kidding yourself if you think it's a victimless crime. Your cocaine, for example, comes from Columbian narco-terrorists who kill anyone who gets in their way, to drug mules who are often forced to carry it over the border, to gangs of organized criminals who distribute it to your friendly drug dealer.
Other drugs are different only in degree. Just because you don't see the costs of your actions doesn't mean that there are none.

JupiterPluvius, yes, you're right of course. However, I was trying to differantiate between material where there is being caused immideate harm to the child, and "harmless" material. Sexually daring personal pictures made by 15 year old girls and posted on Myspace do not cause harm to the girl (beyond potential psychologial trauma from being haunted by the pics years later and so on). I don't think the viewer should be punished for this the same way they should if viewing images of an 8 year old girl being raped.

Radosh, I am sorry that I misread your post. That's what happens when writing comments in the middle of the night when I really should have been sleeping :-/

Thank you for your fight against the child porn hysteria!

dan - the crimes you cite are admittedly terrible, and are the inevitable result of prohibition. But if drugs could be manufactured, distributed and used without interference, there would be no victims. The same can not be said of child pornography.

i have seen pics and vids of this girl naked, spread pussy and having sex with men, women, girls and boys

Yes, me to, I have seen a younger girl working a dildo into her pussy as a she sucks a boys cock and he cums on her face

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