The downloading and possession of child pornography should not be a criminal offence

In this last round I would like to consider an emotive and well written case which opposes my opinion in this debate.For this I would like to refer to a recent article published in a January 2013 edition of the New York Times Magazine. The front page article titled 'The Price of a Stolen Childhood' presents a sobering account of the very real harm caused by child abuse and as a consequence of a victim learning that images of their abuse are circulating around the web. The article can be found here http://goo.gl... (please read before continuing)The author talks about Amy and Nicole, two victims of child abuse, and how they are going about fighting for financial restitution, from people who are found guilty of possessing images of their abuse, through joint and several liability.Page five of the article explains that join and several liability is:"... often used in pollution cases: when several companies dump toxic waste in a lake over time, a plaintiff can go after the company with the deepest pockets, and a judge can hold that single company responsible for the entire cost of the cleanup — with the understanding that it’s up to that polluter to sue the others to pay their share".In this context, the possessor of child abuse images would be sued for the full extent of the damages which result from the harm caused to the victim from learning that images of their abuse are being distributed and shared. It would then be up to the defendant to sue other parties jointly liable for that harm.Although, as mentioned before, the Crime Victim's Rights Act states that a victim has "The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime ...", the provisions for this by the FBI's Child Pornography Victims Assistance Program make continued notification optional. This creates the rather unfortunate circumstance whereby a defendant can make a legal claim for liability for the harm caused by notification, against the parents of the victim if they decide to tell the victim that images are being distributed, or against the victim themselves by opting in to future notification. As the circumstances of notification described at the start of the article are for the purpose of identifying Nicole as the victim, rather than determining the age of the victim for the purposes a prosecution, the authorities could also be said to be liable for the harm caused from the notification. The article does not directly touch on the issue of whether possession should or should not be an offence, but comments in the discussion section of the article, made by a public defender, do emphasise the problem of passive consumers of indecent images being considered liable for the harm caused to the victim. As this debate concerns the necessity for an act to proximately cause harm for a prohibition to be justified, the point made by the public defender below, in relation to the proximate cause principle in civil remedies, is relevant for the purpose of this debate.In response to the article, a commenter who identifies himself as somebody who defends downloaders writes:"... These indigent men are ... sentenced to ten years or so of prison time only to have trial lawyers seek millions of dollars from them. They will emerge unemployable with this non-dischargeable debt, paying for conduct that the court admitted they did not do (that's the very nature of joint and several liability -- you pay for the crimes of others). Numerous circuit courts of appeals have determined that this makes no sense and is potentially unconstitutional, but the author chose to focus on the one court in Texas that did not..."In response, a commenter named Lynn writes:"Therapy costs money. Medication for anxiety, night terrors, depression costs money. Traveling to and from court to testify costs money. Who should pay those costs if not the person who inflicted the damage?"'Defender' responds:"Lynn, I agree that the people who harm these children should be held responsible. If you sue someone, you normally have to show that a person "proximately caused" harm to another person. Some courts have allowed restitution despite these lawyers' failure to show proximate cause. It's very hard to show how an anonymous internet downloader has proximately caused a child any actual harm. This is because there is no marginal impact: if the downloader did not exist, would these children be LESS harmed? No, the sad truth is that they've already suffered the harm, and the downloader does not really add to that...".The full comment thread can be found here http://goo.gl...In UK law the test for legal causation requires that a defendant's act is both factually responsible for the outcome, and that it is a substantial and operative factor at the time. As harm would not have come to the victim in these circumstances had the parent not told the victim, the victim not opted to receive notifications, or the authorities not made enquiries with the victim in relation to their investigation, it cannot be said, in accordance with the principles of legal liability, that a person who downloads indecent images can be legally responsible for the harm caused.A series of three short videos explaining these principles can be found here http://goo.gl...Lastly I would like to suggest that the principle being applied when it is claimed that harm is caused to a victim, as a consequence of images of their abuse being downloaded, is not being applied in similar cases, and so is more reflective of societies attitudes towards offences against children than it is about any actual harm being caused.To illustrate this I will refer to the unfortunate suicide of teenager Jessica Logan, which followed the circulation of a nude photograph and a campaign of harassment from fellow students. The story can be found here http://goo.gl...In this case the parents of the victim took legal action against various parties for their involvement in the circumstances which resulted in their daughters suicide. This action amounted to a claim of negligence by the school and resident police officer and a claim for compensation against the victim's ex boyfriend and his friends for circulating the nude photograph around two high schools within the district. The suit does not attempt to claim restitution from every person who possessed the image, unlike the restitution claim in the case of Amy and Nicole, even though the victim's knowledge that the images was being seen by many people would have contributed to her suffering.In Jessica's case the responsibility for her suffering as a consequence of the image of her being circulated can be said to lie with those who distributed the image. This can be said to be true for indecent images of children. For the reasons outlined in this debate, I respectfully submit one last time that the responsibility for this suffering cannot lie with people whose offence is possession or making, without distribution. My final comment will be a quote from an article about justice. It is with this that I would remind anybody reading this debate that criminal law is not singularly about revenge or punishment, but is about the restoration of justice."True justice cannot be administered by people who enjoy punishing. Neither can it be administered by those who seek to rule you. It cannot be administered by judges appointed by their rulers to do their bidding and to defend their decrees. It can only be administered by people who have it in their highest interest to provide the best service possible, to establish a win-win relationship and to make the best possible outcome even from the worst situation - people who do not spend their schooling memorizing arbitrary laws, but rather studying philosophy and the science of being human and thinking for themselves about it as they strive to beat the competition in the business of bringing harmony to the world."Article: http://goo.gl...