The case of Stanley v. Georgia (1969), recognizes a right to possess obscene pictures in the privacy of ones home.
The exception is if the images are of real (not drawn or "virtual" images) children in obscene activity.
Why the difference?
Because in order to put a damper on the industry, world-wide, that makes it profitable for adults to exploit children sexually, with resultant harm to the minors, the government has adopted a strategy of punishing the users of the kiddie-porn, as it is commonly called.
The result is that state and federal governments arrest men in their older years for downloading from the Internet, for a price, paid to what may well be organized crime figures, kiddie-porn.
I know of a state case (prosecuted in state, not federal, court) in which the man was in his mid-sixties and semi-isolated from any real social life. He would go on the Web and look at kiddie porn, which he traded with others on-line, which is how he got caught. Because he was in frail health, had led a legally blameless life, and downloaded the illegal images for personal use, i.e. not-for-profit trading, he was given a sentence of probation, no jail, plus ordered to obtain counseling as required by the probation department. That seemed a just outcome to me, as the man was remorseful, contrite, and resolved to work on his need to get out into the community by doing volunteer work at the hospital he frequently had need to visit.
In the case reported below, the prosecution was in federal court, where the government takes a much sterner view of such matters. A sixty-six year old man who had served as a college dean was caught in possession of a large number of images of kiddie-porn. As part of a plea deal, he agreed to accept five years in the federal penitentiary.
This seems an unnecessarily harsh punishment for a man that age, assuming that he had led a legally blameless life, served his community well, and was making up for a poor social life by looking at images and wondering, or fantasizing, about what he was viewing.
What would you say is the gist of the man's crime? Sexual fantasizing? Or contributing to the delinquency of minors?
Normally in the U.S. we don't punish people for their fantasies. Hollywood and the advertising industry make a business of titillating our fantasies of romance with beautiful actresses, or actors. Angelina Jolie and Brad Pitt come to mind. Wouldn't it be lovely to be good friends with Angelina? This is a pipe-dream, a fantasy. It's what Hollywood wants you to think, because it sells tickets.
Shouldn't there be a sliding scale of punishment for people involved with kiddie-porn? The organized businessmen who decide to fill the need or desire of the market, and then the recruiters of the children would be at the most severely punishable end of the spectrum, followed by the camera-men and others who make a business of promoting and selling the contraband wares. As for the ultimate consumer, some old guy with no normal social life who gives in to kinky curiosity, isn't he on the low end of the totem pole? I know, the federal prosecution service is in the business of setting examples to deter by hanging those who get caught up in illegality out to dry. This is why you read of tax fraud crimes around April 15th, tax time. It makes you think twice when complying with the voluntary system of providing information when it comes to tax return filing.
I notice that the judge in the case below has discretion to impose a lesser sentence than five years. It will be of interest to see whether he exercises it in the old man's favor. Five years seems a long time in prison for a sixty-six year old whose crime (helping to sustain the kiddie-porn industry and thus harming children) seems somewhat theoretical, don't you think?
It must be the case that the government has great difficulty successfully prosecuting the creators and purveyors of kiddie porn. Going after the old men who view it is picking the low-hanging fruit, it seems. Look, we're doing something about this problem, we're doing what we can, the government seems to be saying through its prosecuting arm. Great. Good job. This will teach the creators and purveyors of kiddie-porn to be more careful. We'll go after the other victims, apart from the kids, the old men who don't have a life. We'll put them in prison. Meanwhile, porn purveyors all over the world beam their stuff all over the 'Net.
Well, if you can't catch the big fish, go after the fry, I say. Keep the public happy. Fill the prisons to overflowing.