What’s Worse, Raping a Child, Or Possessing Pictures of Such?

When I was young, my family wasn’t the first to get cable TV, but, my cousin Louis had cable TV in his basement.  So, on August 1, 1981, we both sat there in amazement as MTV began its first broadcast.   On that day, my love affair with music videos began.  Soon, I convinced my parents to buy a video camera (massive piece of equipment, back in the early ’80’s) and I had a good time shooting lip synced music videos with neighborhood friends.  Eventually, I had to grow and become a lawyer, but in the ‘90’s I owned a music video production company here in Orlando, steady-cam and all.

I say all of this only to bolster my credibility regarding pictures and video.  As you know, video cameras basically capture pictures in sequence, and our iPhones have blurred the line between cameras and video cameras by doing both things without much fuss.  And, the number of pictures that can be taken per second (frames per second) has gone through the roof.  We now have cameras out there, like URSA MINI from Blackmagic Design, that will capture 160 frames (pictures) per second, all for a couple of thousand dollars.  Back when I was shooting music videos, my “3-chip” digital camera cost thousands, but could only shoot 30 frames per second.  Now, you might be asking yourself, what does this have to do with child pornography?  Well, here comes the transition folks, wait for it.

Florida’s legislature has decided to punish child pornographers for every single picture they possess.  Each photograph is a felony carrying 5 years in prison.  What this means is, as cameras become more advanced and take more pictures per second, the punishment for this crime skyrockets, as defendants charged with such crimes often possess hundreds of photos.  To see how this plays out in real life, let’s take a look at the recent case of Pardue v. State, 2015 Fla. App. LEXIS 13406 (1st DCA Sept. 9, 2015).

Pardue was convicted of capital sexual battery, lewd molestation on a child under 12, twenty-five counts of promoting sexual performance by a child, and twenty-five counts of possession of photographs depicting sexual conduct by a child.  The only issue the appellate court addressed was the 25 counts of child pornography.  These 25 images appeared similar, like holding down your picture button on your iPhone.  The 25  images were taken around the same time “in rapid succession”. Id.  At trial, the state admitted that these “images might appear similar or identical to a layperson”, after all, cameras are now capable of taking images at such a high rate that “different” pictures may actually look pretty much the same.  The detective explained that these images were, in fact, different, because  “when a photo is taken, it is assigned a ‘hash value’, which uniquely identifies that photo,” and all of these photos had unique hash values. Id.

Pardue’s defense attorney argued that multiple convictions for photographs that depict the same conduct on the same date violate our constitution’s prohibition against double jeopardy.  Basically, the Fifth Amendment to our Constitution states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”.  The appeals court wasn’t buying Pardue’s double jeopardy argument, reasoning that the legislature was clear in section 827.071(5)(a) of the Florida Statutes when they said that “the possession, control, or viewing of each such photograph, motion picture, … image.. is a separate offense”.

Here’s what’s crazy.  Pardue was convicted of raping a child.  But, the sentence for possessing 25 images of child pornography was more serious than raping a child.  Sad, but true.

This insanity is happening all across the country.  Take the case of Morton Berger, a former high school teacher in Phoenix.  He was convicted of possessing 20 child pornography pics.  Each picture in Arizona carries a 10 year minimum mandatory, so Berger received a 200 year prison sentence.  That’s right, 200 years (the State asked for 370 years).  Berger never molested a child, but under current law, he would have been better off molesting a child than possessing images depicting such.  A 2003 study found that the mean prison sentence for child molesters in 13 states was 88.1 months.  If you rape a child, you will receive an average sentence of under 9 years.  If you possess child pornography, the sky is the limit—as each picture counts as a separate crime which adds up to lots of prison time.

Sadly, Morton Berger would have been better off simply molesting the child in his 20 images, as he may have received an average sentence of 9 years prison raping the child, rather than 200 years prison for possessing 20 pictures of such conduct.  It is hard to believe that the harm created by possessing child pornography somehow outweighs the direct harm done to children who are victims of rape–but that’s the law.