Trading the Sexual Child: Child Pornography and the Commodification of Children in Society

Introduction 132I. The Criminalization of Child Pornography 133A. Federal Child Pornography Law 133B. The Disparity Between Receipt and Possession 137C. Critical Responses to Child Pornography Prosecutions 139II. The Commodification of the Child in Pornography and Beyond 142A. Gender and Dominance 143B. The Child-Adult Relationship 145C. The Child as a Sexual Object 148D. Commodifying the Child 149III. Practical Steps Toward Stemming the Market 152Conclusion 156IntroductionChild pornography laws seem harsh and flustered, emblematic of a kind of slapdash legal crusade to protect children from sex. As of now, the crusade appears arbitrary. A man who downloads images of child pornography from his laptop risks detection by a federal agent, followed by a search warrant, a federal prosecution, a (likely) guilty plea, years in prison, and later, registration as a sex offender and other probationary requirements. Lawmakers, judges, and scholars have hitherto struggled to define the harm caused by child pornography, and the result is a legal regime that seems excessively punitive toward men who have viewed child pornography but have never touched a child.No law criminalizes the fantasy of sexual conduct with a minor without some accompanying expression of that fantasy, thereby avoiding First Amendment violations.1 However, there is still debate on where to draw the line between crime and fantasy. Surely the state may not punish those who wish to view child pornography but never do so, even if they wish it with a violent passion. And surely the state may punish the producers themselves. And, perhaps more arguably, the state may punish distributors, those who tum a profit or gain some other benefit by collecting and disseminating child pornography.2 But what about a man who searches for "barely eighteen" pornography but stumbles upon and downloads photos labeled "16 y/o" instead? Or a man who paints realistic photos of himself penetrating a prepubescent relative? A man who draws stick figures of the same scene? Or one who uses a computer program to superimpose an image of his own genitals near the genital area of a fully clothed child? Current debate on child pornography laws almost universally assumes that the harms inherent in child pornography are derivative of the sexual abuse that occurred in the production of said pornography. Based on this assumption, many critics claim it is excessive to impose a lengthy prison sentence on men who merely view child pornography. This Article provides a new framework for examining the harms inherent in the child pornography market. Feminist dominance theory provides a relevant analytical lens by which to explore how child pornography damages not just the children depicted, but children and society more generally. In the first place, child pornography works to eroticize a child's powerlessness, both during the recorded sexual act and later, when third parties derive sexual gratification from the record of that child's subordinated position. Furthermore, the existence of a booming child pornography market validates viewers' desire to sexualize children. Indeed, these viewers, along with those who produce and distribute child pornography, trade images of children as commodities on the market. This market then invites subtler, more socially acceptable variations on the commodified child. Moreover, such commodification signals to society that consumerism knows no bounds, and that the market can meet even the most destructive desires. After all, if a sexual predilection so stigmatized, so audaciously illegal as child pornography can still find a place in the consumer market, is anything really off limits? Part I analyzes the current scope of child pornography laws, traditional rationales for criminalizing child pornography, and critiques of those rationales. Part II then sets forth a new framework, rooted in dominance theory, for analyzing the harms of non-contact child pornography offenses. …