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Thursday, November 01, 2007

A possibly libertarian defense of laws against child porn:

First, I acknowledge that it is at least possible for people on both sides of the legal debate find child abuse and child pornography abhorrent. For those against the various extant laws, some debate the penalties associated with the crime, while others debate the ethics of criminalizing indirect harm of minors. Of course, some on both sides of the debate are pedophiles, their public stances notwithstanding.

I view many things in terms of power and harm. Who has the power? Is that power being abused? Is someone being harmed? Is that harm justified? Is that harm self-inflicted? The last of those questions is irrelevant in this context, but the four remaining questions are very much at the heart of the matter. There are instances where, because of the power differential, true consent is very difficult, and in some cases, impossible. In lesser cases, true consent may be very difficult or unlikely. We saw this in the LeTorneau case and in other cases time and again.

An easy and valid justification for laws against child porn is that the person who possesses it, by the nature of that possession, is profiting from the criminal and harmful acts of themselves or others. I do not refer to those who discover such materials and make a reasonable effort to bring their concerns and the materials in question to law enforcement. This profit may or may not be financial in nature, but it is, nonetheless, profit in the form of some sick benefit to the consumer. As a result, I have absolutely no problem with those guilty serving time in prison. The problems I do have is when simple possession garners more prison time than an assault on a child; and when sentences are not tied to a mandatory treatment program. Also, I have a problem when the mandatory minimum sentence exceeds the maximum for some degrees of murder, as distinguished from manslaughter. I'm in favor of giving those guilty prison time and a lot of it, but the judges need at least some statutory discretion since every case is different. However, in particularly horrible or extreme cases, I support that discretion all the way to a sentence of the rest of a person's natural life. I don't know if this is libertarian or not, or if this topic even belongs in that particular spectrum. However, this is what I think. Take it as you will.

On a lighter note, enjoy the music.


Candace said...

As to mandatory sentences, there's a movement to put first-time offenders (of child sexual assault) in jail for life, without parole. Is this extreme? I don't think so based on the realities that (1) there's no such thing as a one-time offender, and (2) there is no effective rehabilitation or cure. When a pedophile gets out of prison, he re-offends. Unless and until there's a cure, why put more children at risk by releasing these predators back into society?

People are locked up all the time in mental institutions for being a danger to themselves or others, so it's not like there's no precedent for keeping someone incarcerated for being dangerous.

Snave said...

If you are still in a funk, maybe this will help:

I am pulling for Alabama this weekend like I have never pulled for them before! (I don't often pull for the Tide, but I would love to see them beat LSU!) Of course this is because it could Oregon in the BCS rankings, but then again the Ducks have to beat the goddamned Dennis-Erickson-led ASU Sun Devils.

Some good key points in your post: every case IS different. I think there has to be some flexibility even in the case of stuff as sick as child porn... like you say, re. maximum and minimum sentences, etc. If minors are being harmed, I have no problem with the perpetrators doing jail time. I think Candace makes a good point too about incarcerating someone for being dangerous.

As for adults participating in, viewing and owning porn, unless it is something obviously heinous like snuff or torture, I suppose it is up to the adults to decide what they want to do.

As for the argument about pornography being "free speech" I'm not sure I understand that, or ever have really understood it. Is this because people fear that once the censors get rid of all forms of porn, other stuff they don't like will then follow?

Mandelbrot's Chaos said...

Candace, you're talking about the worst end of the spectrum, and in those cases, I agree that some are beyond help and need only a bed in a maximum security correctional center. However, my concern is with those who are lesser risks to society, and those who have not directly offended against a child. There must be punishment, but it must be just, or else it ceases to be justice and becomes vengeance. Granted, I crave that as much as anyone and more than some, but when it comes to the law that is the very foundation of our government, vengeance scares me. Also, I think involuntary committal should remain an option.

Snave, you mentioned pornography as free speech. Granted, they're not so much speaking as moaning unconvincingly, but even if the ideas expressed lack even the rudiments of sophistication, and the medium lacks even the pretense of taste, that expression of an idea qualifies as speech, and as long as it's between/among consenting adults (which rules out snuff and torture, but leaves the option for consensual BDSM), it is and should remain protected free speech. Of course, the ideas expressed usually fall into one or more basic and predictable forms, but nevertheless, it's a form of speech.

Oh, and thanks for the well wishes for the Tide. They're a 7 point underdog, but they'll be playing in Tuscaloosa in front of a very partisan crowd. They've overachieved before this season, and I hope they do it again.

Lizzy said...

I'm with ya on this one, MC.

Candace said...

MC - you won! (see mah blog) :)

Sheryl said...

I thought the interesting point you made was in terms of power and libertarianism. That seemed like an acknowledgement that while the state can abuse power over individual rights, so can the family unit.

I think a lot of adults view their children as possessions to with as they see fit. And that is, of course, muddied by the fact that children are not self sufficient, but in fact dependent on their parents to survive.

On the other hand, parents often get tax writeoffs for having children and sometimes receive governmental aid for raising them as well. But either way, they are still citizens and should have certain rights and protections from the state as such.

Mandelbrot's Chaos said...

Yes, Sheryl, but unless you're dealing with the cannibals from the Texas Chainsaw Massacre, the family doesn't do so at the point of a gun. While it is true that some adults see their children as possessions to handle as they see fit, others see children as a blessing and a responsibility. "Helicopter parents" are easily the most annoying of the subset of adults who view their children as possessions, and I view that as simply a more subtle form of child abuse than beating them.

While it is true that children are citizens and should have certain rights and protections, ultimately, it is up to the parents to rear their children as they see fit, and the state's place only to step in when there is solid evidence of abuse. Otherwise, it is not the state's purpose or right to tell parents how to raise their children.