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Georgia Criminal Law Review

Document Type

Article

Abstract

For the past 40 years, federal courts have committed two grievous textual errors in interpreting the federal child-pornography statutes and sentencing guidelines. These errors have caused hundreds of wrongful convictions—many the bases for decades-long sentences—and have produced a body of caselaw that is profoundly incoherent and in direct conflict with basic tenets of First Amendment doctrine. They have also likely endangered children. This article identifies these errors, surveys their consequences, and suggests legal arguments for people charged or convicted under the child-pornography statutes.

The first error impacts the application of all of the federal child-pornography statutes and sentencing guidelines. These statutes and guidelines apply to “visual depictions” of minors engaging in “sexually explicit conduct.” They define “sexually explicit conduct” to include the “lascivious exhibition of the genitals.” The federal courts have conflated the statutory terms “visual depiction” and “lascivious exhibition,” holding that these statutes and guidelines apply to any visual depiction that is, itself, a lascivious exhibition of a minor’s genitals. This error significantly expands the reach of these statutes and guidelines—a visual depiction may lasciviously exhibit a child’s genitals even if the child it depicts is engaged in entirely innocent conduct.

The second error impacts the application of the most draconian of the federal child-pornography statutes, which imposes a 15-year mandatory-minimum sentence on anyone who engages in sexually explicit conduct by using a minor, or who attempts to do so, in order to film that conduct. The federal courts have misread this statute as applying to anyone who uses, or attempts to use, a minor to produce a lascivious image. This error causes people who surreptitiously film minors to face the same decades-long sentences as people who rape minors in order to produce pornography.

The first of these errors has troubling doctrinal implications. It has led the federal courts to criminalize protected speech, to violate the speech-conduct dichotomy that underlies First Amendment doctrine, and to punish people for their thoughts. It has also caused the federal courts to uphold convictions in some cases based on conduct that produces acquittals in others.

Both errors have troubling practical implications. The Government prosecutes approximately 2,000 people per year under the child-pornography statutes—statutes that all of the federal courts are currently misreading. Perhaps most troublingly, by expanding the reach of the child-pornography statutes beyond the scope of their text, the federal courts have incentivized prosecutors to divert limited resources from cases involving the most serious forms of child abuse.

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