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.