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==History==
==History==
In 1990, Congress passed the [[Child Protection Restoration and Penalties  Enhancement Act]],  making  it  illegal  to  knowingly  possess  child pornography  under  § 2252(a)(4)(B). Once  “possession”  was  criminalized,  the  Sentencing  Commission  was  tasked  with  restructuring  the Guidelines  in  light  of  the  1990  amendments. The  Commission responded  by  developing  a new  Guideline  section  that  would punish  “receipt”  and  “possession”  equally. The  Commission’s  proposal  would  punish  “receiving,”  “possessing,”  and  “transporting”  child pornography  under  § 2G2.4,  which  imposed  no  mandatory  minimum sentence. The  new  Guideline  would  continue  to  punish  offenders intending  to  traffic  child  pornography  under  § 2G2.2,  which  carried  a mandatory minimum five-year sentence.
In 1990, Congress passed the [[Child Protection Restoration and Penalties  Enhancement Act]],  making  it  illegal  to  knowingly  possess  child pornography  under  § 2252(a)(4)(B).<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>


However, the  Commission’s  rational  new  scheme  was  upended  by an  amendment  included  in  an  appropriations  bill  introduced  by  Senator Jesse  Helms  of  North  Carolina. The  amendment  was  never  debated and it  forced  the  Commission  to  punish  “receipt”  convictions  under§ 2G2.2.<ref>https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf</ref>
==Theory==
The harms of child pornography possession are said to include [[enabling harms]], [[gateway harms]], [[correlation harms]], [[market-based harms]], [[norm-undermining harms]], and [[perpetuation harms]].<ref name=fsu>https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr</ref>


==Barrier crime==
==Penalties==
===Incarceration===
Under federal law, any person who,  under subsection (a)(5), “knowingly possesses, or knowingly accesses with intent to view” child pornography may be imprisoned  for  up  to  ten years  with  the  maximum  raised  to  twenty years in cases involving the depiction of a child under twelve. If the person has a prior sex-abuse-related conviction, he faces a minimum term of ten years’  imprisonment and maximum of twenty years.<ref name=fsu/>
 
===Barrier crime===
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>
Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.<ref>http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf</ref> Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.<ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719</ref><ref>https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720</ref>


==Disenfranchisement==
===Disenfranchisement===
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.<ref>https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/</ref> In [[Alabama]], child pornography possession is punishable by permanent disenfranchisement.<ref>http://www.866ourvote.org/issues/felony-convictions</ref><ref>"Any person who knowingly possesses any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."  Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>
depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."  Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf</ref><ref>http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf</ref><ref>"A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1</ref>


==Foster care and adoption==
===Foster care and adoption===
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>
Under {{uscsub|42|671|a|20|A|i}}, approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.<ref>https://www.childwelfare.gov/pubPDFs/background.pdf</ref>


Latest revision as of 23:19, 25 June 2020

Possession of child pornography is an offense whose punishment varies by jurisdiction. The U.S. Supreme Court decision Osborne v. Ohio authorized its criminalization.

History

In 1990, Congress passed the Child Protection Restoration and Penalties Enhancement Act, making it illegal to knowingly possess child pornography under § 2252(a)(4)(B).[1]

Theory

The harms of child pornography possession are said to include enabling harms, gateway harms, correlation harms, market-based harms, norm-undermining harms, and perpetuation harms.[2]

Penalties

Incarceration

Under federal law, any person who, under subsection (a)(5), “knowingly possesses, or knowingly accesses with intent to view” child pornography may be imprisoned for up to ten years with the maximum raised to twenty years in cases involving the depiction of a child under twelve. If the person has a prior sex-abuse-related conviction, he faces a minimum term of ten years’ imprisonment and maximum of twenty years.[2]

Barrier crime

Child pornography possession is a common barrier crime, meaning that, if it is on one's criminal record, it prevents one from working at an assisted living facility or licensed adult day care center, or other places run by state departments of social services.[3] Usually it is a misdemeanor to falsely deny having a barrier crime on one's record when applying for such jobs.[4][5]

Disenfranchisement

In Virginia, child pornography possession is considered a "more serious" offense that requires an application for restoration of civil rights. The offender must be free from any sentence served and/or supervised probation and parole for a minimum of three years in order to apply.[6] In Alabama, child pornography possession is punishable by permanent disenfranchisement.[7][8][9][10]

Foster care and adoption

Under 42 U.S.C. § 671(a)(20)(A)(i), approval of the foster or adoptive home may not be granted if the applicant has been convicted of child pornography offenses.[11]

References

  1. ↑ https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v65_i3_sbacon.pdf
  2. ↑ 2.0 2.1 https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2593&context=lr
  3. ↑ http://dhss.alaska.gov/ocs/Documents/BarrierCrimeMatrix.pdf
  4. ↑ https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1719
  5. ↑ https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1720
  6. ↑ https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/
  7. ↑ http://www.866ourvote.org/issues/felony-convictions
  8. ↑ "Any person who knowingly possesses any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony." Code of Alabama § 13A-12-192 http://www.ndaa.org/pdf/Obscenity%20Statutes%206-2010.pdf
  9. ↑ http://felonvoting.procon.org/sourcefiles/alabama-pardons-voter-restoration-2012.pdf
  10. ↑ "A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason." Code of Alabama § 15-22-36.1
  11. ↑ https://www.childwelfare.gov/pubPDFs/background.pdf
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