Sentencing issues for ‘simple’ possession of child pornography

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In Canada, the maximum sentence for ‘simple’ possession of child pornography is 5 years in jail where the Crown proceeds by Indictment (see section 163.1 of the Criminal Code of Canada). There is a minimum jail term of 45 days upon conviction. Over the years the legislation has been amended and the penalties are definitely getting stiffer here in Canada.

However, in the United States the sentencing regime for ‘simple’ possession of child pornography is about to become a whole lot tougher. In late November of last year Congress passed legislation which doubles the maximum penalty for ‘simple’ possession of child pornography when the material deals with prepubescent minors from 10 years to 20 years. It appears that the legislation in relation to sentencing on ‘simple’ child porn possession is getting tougher in the United States because (i) the politicians perceive the courts to be too lenient, (ii) they believe that those who merely possess the contraband create a market for it and (iii) that those who possess child porn are likely to actually start physically abusing children.

It seems that this thought process is not unique to politicians in the States and that our politicians here in Canada use the same arguments to pass through tougher laws dealing with child pornography related offences. The second and third points are also often relied upon in court as justification for doling out stiffer sentences. And if those points happen to be true then that’s fair. However, if those two rationales are going to be the basis for sentencing someone convicted of ‘simple’ possession of child pornography, they should be backed up by reliable, empirical evidence. However, none ever seems to be presented in court in these cases.


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