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    Understanding and Defending Juvenile Sex Crimes: Toning Down the Hysteria and Looking at the Role of the Internet

    A Trap for the Unwary Internet-Based Sexual Offenses

    How common are sexually-based Internet crimes?

    It is estimated that one in seven youth (between the ages of 10 and 17) will receive an unwanted sexual solicitation over the Internet. 4% of youths have experienced an “aggressive” solicitation, where someone attempted to contact the child offline. Experts agree that the best way to protect children from online solicitations and exposure to pornography is to supervise their online activity, or at a minimum to ensure that parental controls, such as “filtering” or “blocking” software, is installed on any computer used by children.

    The Problem

    There can be no doubt that the exploitation of children through the dissemination of child pornography is a major international issue. The dimensions of the problem are staggering. As a Colorado criminal defense lawyer, however, the issue is much more narrow. A lawyer’s job is to protect my clients from the hysteria and unreasoned application of draconian laws that – rather than intelligently addressing the individual -paints in broad mandatorys sentencing strokes. Lives are ruined – and many – mostly very young men who have stumbled into this dark world – often by accident – while on their computers – are never the same.

    Many of these young men initially had no idea that the Peer to Peer network they were traveling on the Net to download and share music – such as Limewire – was a potential gateway to child pornography. When they realize this – it is often too late – they are often hooked by confused feelings of curiosity and the seeming invincible feeling of privacy the web gives them.

    Punishment Does Not Fit the Crime

    The formulation of appropriate punishment for those who view and possess such images has taken a back seat to the overreaction of pandering politicians who have capitalized on the fears of the public.

    Discussions on the topic thus far have failed to pay proper attention to the effect computer behavior and the Internet have on the issue.

    That is not to say that the question of the production and dissemination of Child Pornography as a problem of major proportion is not true. The crime of possession of child pornography is intended to rectify the horrific market that exists in the sexual exploitation of children. Each image is a reminder of the abuse, molestation, and sexual victimization of a child. The question here is what is the proper reaction to the possession of these images? Should lives end – or should compassion and understanding take the place of paranoia and hysteria?

    What is Child Pornography?

    The Federal Definition:

    Child Pornography is defined as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” containing sexually explicit conduct involving a minor. This can range from images of exposed genitalia to more explicit sexual abuse of children under the age of eighteen, such as bondage or penetration by adults or objects. These images depict a variety of age ranges of children, including pubescent minors, pre-pubescent minors, and even infants or toddlers. According to the National Center for Missing & Exploited Children, in more than half of child pornography cases, the victimization of the children appearing in these images resulted from acts by people they know, such as “parents, other relatives, neighborhood/family friends, babysitters, and coaches.” The still image or video captures the abuse.

    The State of Colorado’s Definition of Child Pornography uses the federal definition at Child pornography, as defined in 18 U.S.C. sec. 2256 (8); or

    To establish the new push to prosecute these cases in Colorado – the state enacted a new law that compels preservation of evidence by an Internet Service Provider. Here is the law:

    § 6-2.7-102. Internet evidence for law enforcement – preserve and release evidence – reports – training materials

    (1) (a) An internet access provider, upon the request of a law enforcement agency, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other legal process. The internet access provider shall comply with the request as soon as possible following receipt.

    (b) Records referred to in paragraph (a) of this subsection (1) shall be retained for a period of ninety days, which shall be extended for an additional ninety-day period upon a renewed request by the law enforcement agency.

    (2) (a) An internet access provider shall release evidence regarding all categories of information identified in 18 U.S.C. sec. 2703 (c) (2) that are in its possession within ten days after receiving a court order requiring the internet access provider to release such evidence to law enforcement. If the internet access provider demonstrates to the requesting law enforcement agency within five days of the request that, for bona fide technical reasons, it cannot comply with the order within ten days of the request, it shall make every reasonable effort to comply with the request as soon as reasonably possible.

    (b) In connection with any criminal investigation regarding possible sex offenses involving a child under section 18-1.3-1003, C.R.S., that involves immediate danger of death or serious bodily harm, a law enforcement agency in this state may issue a request, without compulsory legal process or court order, to a designated recipient of the internet access provider to disclose, consistent with 18 U.S.C. sec. 2702 (c) (4), the information identified in paragraph (a) of this subsection (2). The internet access provider shall comply with the request immediately and without delay, or if unable to immediately comply, communicate with the requesting agency to discuss the nature of the request and to coordinate a timely response.

    (3) An internet access provider doing business in this state shall report incidents of apparent child pornography to the national center for missing and exploited children pursuant to 42 U.S.C. sec. 13032. The report shall include, if available, the subscriber’s city and state or zip code.

    (4) Each internet access provider with more than fifteen thousand subscribers who are residents of this state shall, upon request of the attorney general, provide training materials to law enforcement agencies in this state regarding best practices for investigating internet-related crimes involving sexual exploitation of children, the internet access provider’s law enforcement compliance practices, and contact information for the internet access provider and its designated recipient for law enforcement requests.

    (5) Subsections (1) and (2) of this section shall be interpreted consistent with the requirements of federal law that apply to internet access providers, including but not limited to 18 U.S.C. 2701 et seq. and 42 U.S.C. 13032.

    The Internet Explodes the Problem

    Originally, distribution of child pornography took place through real, physical images in print media; however, computers and Internet now play a predominate role in the distribution of such images. It is inexpensive to produce and memorialize child pornography on videotape, film, CD-ROM, or DVD, to name a few formats. The pornographic information can be loaded onto the creator’s computer and then distributed via the Internet in a variety of manners, including Internet chat rooms, instant messages, e-mail, and websites.

    This huge, illegal industry is prolific on the Internet, with at least 100,000 websites containing child pornography. Data reveals that the websites exist to feed a very real market for child pornography. For instance, the file-sharing network Gnutella has reported receiving 116,000 requests for child pornography.

    Further, the child pornography industry’s annual revenue is estimated to be approximately three billion dollars.18 It is an undeniable fact that the development, distribution, and possession of child pornography are real, far-reaching problems.

    The Growth of Peer to Peer Networks

    While the popularity of fee based websites has decreased among child pornography sharers, use of programs that create peer-to-peer networks is increasing. These networks simplify file sharing between several individual computer users. Thus, the illegal market uses the Internet both to grow and to catch the unwary young internet “surfer.”

    A congressionally funded study conducted in 2000, found that one in five youths between the ages ten and seventeen that regularly use the Internet have received unwanted sexual solicitation over the Internet. Further, it has been widely reported that eighty-nine percent of sexual solicitations of youth occur in Internet chat rooms.

    For a more in depth definition of Peer to Peer Networks see the webpage dedicated to that subject:

    From a somewhat older study of this issue – I present this quote:

    The Internet is an exciting new territory for many young people. Nearly 24 million youth ages 10 through 17 were online regularly in 1999, and millions more are expected to join them shortly. They go there to learn, play, meet people, and explore the world. But stories from law-enforcement officials, parents, and young people themselves suggest that not every online adventure is a happy one.

    The Internet has a seamier side that young people seem to be encountering with great frequency.

    This national survey confirms many of the stories. Large numbers of young people are encountering sexual solicitations they did not want, sexual material they did not seek, and people who threatened and harassed them in a variety of ways. While many are able to glide past these encounters as mere litter on the information super highway, some experience them as real collisions with a reality they did not expect and were distressed to find. Some of these young people report being upset and afraid in the wake of their encounters and have elevated symptoms of stress and depression.

    What is Online Victimization?

    People can be victimized online in many ways. In the Youth Internet Safety Survey we asked about three kinds of victimization that have been prominent in discussions of youth and the Internet ¾ sexual solicitation and approaches, unwanted exposure to sexual material, and harassment.

    Sexual solicitations and approaches: Requests to engage in sexual activities or sexual talk or give personal sexual information that were unwanted or, whether wanted or not, made by an adult. Aggressive sexual solicitation: Sexual solicitations involving offline contact with the perpetrator through regular mail, by telephone, or in person or attempts or requests for offline contact.

    Unwanted exposure to sexual material: Without seeking or expecting sexual material, being exposed to pictures of naked people or people having sex when doing online searches, surfing the web, opening E-mail or E-mail links. Harassment: Threats or other offensive behavior (not sexual solicitation), sent online to the youth or posted online about the youth for others to see.

    In this same report – some additional information is applicable to this discussion: What was the content and source of the unwanted exposure?

    • 94% of the images were of naked persons
    • 38% showed people having sex
    • 8% involved violence, in addition to nudity and/or sex
    • Most of the unwanted exposures (67%) happened at home, but 15% happened at school, and 3% happened in libraries
    • While the study did not uncover how many of the exposures involved child pornography. The youth who encountered the material while surfing, it came up as a result of
    • Searches (47%)
    • Misspelled addresses (17%)
    • Links in web sites (17%)
    • For youth who encountered the material through E-mail;
    • 63% of unwanted exposures came to an address used solely by the youth
    • In 93% of instances, the sender was unknown to the youth

    In 17% of all incidents of unwanted exposure, the youth said they did know the site was X-rated before entering. (These were all encounters described as unwanted or unexpected.) This group of episodes was not distinguishable in any fashion from the other 83% of episodes, including the likelihood of being distressing. Almost half of these incidents (48%) were disclosed to parents. It is not clear to what extent it was some curiosity or just navigational naivete that resulted in the opening of the sites despite prior knowledge of the illicit content.

    Pornography sites are also sometimes programmed to make them difficult to exit. In fact, in some sites the exit buttons take a viewer into other sexually explicit sites. In 26% of the incidents where sexual material was encountered while surfing, youth reported they were brought to another sex site when they tried to exit the site they were in. This happened in one third of distressing incidents encountered while surfing.

    Such exposure occurs primarily to the group age 15 and older, but some youth as young as 11 had experiences to report. Even in the older group, the exposure does not merely evoke laughs or mild discomfort. About a quarter of the exposed youth, or 6% of all regular Internet users said they were very or extremely upset by an exposure. Most exposure incidents, even the distressing ones, do not get reported to adults or authorities, although a proportion of these are disclosed to friends and siblings.

    The experiences conform readily to anecdotal accounts from both youth and adult users. Unwanted exposures mostly occur when doing Internet searches, misspelling addresses, or clicking on links. More than a third of the imagery was of sexual acts, rather than simply naked people, and 8% involved some violence in addition to nudity and/or sex.

    Sexual material is very intrusive on the Internet.

    Large percentages of youth Internet users are exposed to sexual material when they are not looking for it, through largely innocent misspellings and opening E-mail, visiting web sites, and viewing other documents. The sex on the Internet is not segregated and signposted like in a bookstore, and it is not easy to avoid. Some heavy-duty imagery is incredibly easy to stumble upon. Apparently many people do not know this yet. They are inclined to think, “Well, I never see it, so it must be something you only get if you go looking.” But youth do not have to be all that active in exploring the Internet to run across sexual material inadvertently.

    While it is not a new thing for young people to be exposed to sexual material, the degree of sudden and unexpected exposure in an unwanted fashion may be an experience made much more common by the widespread use of the Internet._______________________________

    A Great Bibliography on Juvenile and other National and Colorado Sex Crimes Issues:

    Finkelhor, D. (1994). Current information on the scope and nature of child sexual abuse. Child Abuse and Neglect, 4, 31–53.

    Tjaden, P., & Thoennes, N. (2006). Extent, nature, and consequences of rape victimization: Findings from the National Violence Against Women Survey, special report. Washington, DC: United States Department of Justice, Office of Justice Programs, National Institute of Justice, and the Centers for Disease Control and Prevention.

    Becker, J., & Murphy, W. (1998). What we know and don’t know about assessing and treating sex offenders. Psychology, Public Policy, and Law, 4, 116–137.

    Hunter, J. A. (2006). Understanding diversity in juvenile sexual offenders: Implications for assessment, treatment, and legal management. In R. E. Longo & D. S. Prescott (Eds.), Current perspectives: Working with sexually aggressive youth and youth with sexual behavior problems (pp. 63-77). Holyoke, MA: NEARI Press.

    Marshall, W. L. (1996). The sexual offender: Monster, victim, or everyman? Sexual Abuse: A Journal of Research and Treatment, 8, 317–335.

    Federal Bureau of Investigation (FBI) (2005). Crime in the United States, 2004: Uniform crime reports. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation.

    Schwartz, B., & Cellini, H. (Eds.) (1995). The sex offender: Corrections, treatment, and legal practice. Kingston, NJ: Civic Research Institute.

    Hanson, R. K., & Harris, A. J. R. (2004). Sex Offender Recidivism: A Simple Question, 2004-03. Ottawa, Ontario, Canada: Public Safety and Emergency Preparedness Canada.

    Hanson, R. K., & Morton-Bourgon, K. E. (2005). The characteristics of persistent sexual offenders: A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology,73, 1154-1163.

    Hanson, R. K., & Morton–Bourgon, K. E. (2007). The accuracy of recidivism risk assessments for sexual offenders: A meta–analysis, 2007–01. Ottawa, Ontario, Canada: Public Safety and Emergency Preparedness Canada.

    Aos, S., Miller, M., & Drake, E. (2006). Evidence based adult corrections programs: What works and what does not. Olympia, WA: Washington State Institute for Public Policy.

    Gallagher, C. A., Wilson, D. B., Hirschfield, P., Coggeshall, M. B. & McKenzie, D. L. (1999). A quantitative review of the effects of sex offender treatment on sexual reoffending. Corrections Management Quarterly, 3, 19-29.

    Hanson, R. K., Gordon, A., Harris, A. J. R., Marques, J. K., Murphy, W., Quinsey, V. L., & Seto, M. C. (2002). First report of the collaborative outcome data project on the effectiveness of psychological treatment for sex offenders. Sexual Abuse: A Journal of Research and Treatment, 14, 169-194.

    Lösel, F. & Schmucker, M. (2005). The effectiveness of treatment for sexual offenders: A comprehensive meta-analysis. Journal of Experimental Criminology, 1, 117-146.

    Center for Sex Offender Management (CSOM) (2007). Managing the Challenges of Sex Offender Reentry. Silver Spring, MD: Author.

    Becker, J. V., & Hunter, J. A. (1997). Understanding and treating child and adolescent sexual offenders. In T. H. Ollendick & R. J. Prinz (Eds.), Advances in clinical child psychology (pp. 177–197). New York: Plenum.

    Caldwell, M. F. (2002). What we do not know about juvenile sexual reoffense risk. Child Maltreatment, 7, 291–302.

    Hanson, R. K., & Bussiere, M. T. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362.

    Hanson, R. K., Gordon, A., Harris, A. J. R., Marques, J. K., Murphy, W., Quinsey, V. L., & Seto, M. C. (2002). First report of the collaborative outcome data project on the effectiveness of psychological treatment for sex offenders. Sexual Abuse: A Journal of Research and Treatment, 14, 169-194.

    Prentky, R. A., Knight, R. A., & Lee, A. F. S. (1997). Risk factors associated with recidivism among extrafamilial child molesters. Journal of Consulting and Clinical Psychology, 65, 141–149.

    Righthand, S., & Welch, C. (2001). Juveniles who have sexually offended: A review of the professional literature. Washington, DC: Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

    Weinrott, M. (1996). Juvenile sexual aggression: A critical review. Boulder, CO: University of Colorado, Institute for Behavioral Sciences, Center for the Study and Prevention of Violence.

    Worling, J. R., & Curwen, T. (2001). The ERASOR: Estimate of risk of adolescent sexual offense recidivism. Toronto, Ontario, Canada: SAFE-T Program.

    Zimring, F. E. (2004). An American travesty: Legal responses to adolescent sexual offending. Chicago, IL: University of Chicago Press.

    Caldwell, M. F. (2002). What we do not know about juvenile sexual reoffense risk. Child Maltreatment, 7, 291–302.

    Chaffin, M. (2006). Can we develop evidence–based practice with adolescent sex offenders? In R. E. Longo & D. S. Prescott (Eds.), Current perspectives: Working with sexually aggressive youth and youth with sexual behavior problems (pp. 119–141). Holyoke, MA: NEARI Press.

    Fanniff, A., & Becker, J. (2006a). Developmental considerations in working with juvenile sexual offenders. In R. E. Longo & D. S. Prescott (Eds.), Current perspectives: Working with sexually aggressive youth and youth with sexual behavior problems (pp. 119–141). Holyoke, MA: NEARI Press.

    Prescott, D. S. (2006). Risk assessment of youth who have sexually abused: Theory, controversy, and emerging strategies. Oklahoma City, OK: Wood & Barnes Publishing.

    Weinrott, M. (1996). Juvenile sexual aggression: A critical review. Boulder, CO: University of Colorado, Institute for Behavioral Sciences, Center for the Study and Prevention of Violence.

    Zimring, F. E. (2004). An American travesty: Legal responses to adolescent sexual offending. Chicago, IL: University of Chicago Press.

    Center for Sex Offender Management (CSOM) (2001). Educating the Community about Sexual Assault and the Management of Sex Offenders in the Community. Silver Spring, MD: Author.

    Levenson, J. S. & Cotter, L. P. (2005a). The effect of Megan’s Law on sex offender reintegration. Journal of Contemporary Criminal Justice, 21, 49-66.

    Levenson, J. S. & Cotter, L. P. (2005b). The impact of sex offender residence restrictions: 1,000 feet from danger or one step from absurd? International Journal of Offender Therapy and Comparative Criminology, 49, 168-178.

    Phillips, D. (1998). Community notification as viewed by Washington’s citizens. Olympia, WA: Washington State Institute for Public Policy.

    Tewksbury, R. (2005). Collateral consequences of sex offender registration. Journal of Contemporary Criminal Justice, 21, 82-90.

    Hanson, R. K., & Morton-Bourgon, K. E. (2005). The characteristics of persistent sexual offenders: A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology, 73, 1154-1163.


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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