4.1.2. Laws

The current study found that laws and legal frameworks guiding CSAM investigation and prosecution are limiting and unreflective of the changing nature of technology. Henzey (2011) states that "current laws and enforcement strategies are insufficient to suppress child pornography production and distribution" (p. 2), which is supported by the results of this research. A major challenge to investigating and prosecuting CSAM cited in the literature is the lack of legislation or varying legislation between and across jurisdictions, specifically as CSAM is often trafficked across local jurisdictions as well as across international borders (Hillman et al. 2014). This may hinder the ability of law enforcement to hold perpetrators accountable, can impact cooperation between law enforcement in various jurisdictions, and interfere with timely access to evidence when evidence is located in different jurisdictions (Hillman et al. 2014). Lee et al. (2020) note that when there is inconsistency in legal and policy frameworks, perpetrators are able to find loopholes or simply move the jurisdiction and server location where they house CSAM content. For instance, Steel (2015) found that perpetrators in the United States, where there are laws and deterrence strategies in place, began searching in other jurisdictions, such as Russia, to avoid US laws. Lack of consistency in criminal procedures and laws across jurisdictions may also complicate prosecution procedures (Hillman et al. 2014) as was poignantly noted by some participants. To successfully follow a digital trail often requires quick responses and coordination between law enforcement agencies, both nationally and internationally, which adds to the difficulties (Hillman et al. 2014). While participants in the current research study described many challenges pertaining to laws, participants also highlighted that having CSAM as evidence was helpful in obtaining confessions and plea deals. Supporting this, Henzey (2011) highlights that in the United States, federal and state prosecutors have been highly successful in prosecuting CSAM cases, though federal cases show more success. Similarly, Von Weiler et al. (2010) note that interviewees in their German study generally suggested that having images led to more convictions and higher sentencing. While having CSAM as evidence has generally been noted as helpful in prosecuting cases of CSA, it is often noted that sentencing continues to be inadequate. Participants in the current study highlighted inconsistencies across jurisdictions, with some jurisdictions considering CSAM offenses a misdemeanor and with perpetrators of CSAM often receiving lesser sentences than perpetrators of hands-on abuse. Federal statutory minimums for child pornography trafficking offences are 5 years if no prior sex convictions involving a child and 15 years with prior convictions, while the maximums are 20 and 40 years, respectively (Dillof 2016). These base sentences exclude enhancements such as trafficking in imagery that is violent, sadistic, abusive, etc. (Dillof 2016). However, Dillof (2016) notes that the median sentence for these offenses was 6.5 years with variance in charging practices across the country making sentencing predictions challenging. Importantly, this is data on trafficking of child pornography and does not account for production offenses. Statutory minimums for production offenses are 15 years with a 30-year maximum prison sentence for first-time offenders (US DOJ 2020). While participants in the current study noted many challenges and inconsistencies in sentencing, it is a challenge to make direct comparisons. Hands-on sexual abuse offenses are likely to be prosecuted using state law, while CSAM offenses can be prosecuted using federal law, state law, or both (US DOJ 2020). State laws differ significantly, as do prosecutorial practices and sentencing. To support enhancing legislation and consistency in legislation, ICMEC (2018) has outlined a model of legislation after undertaking a global review. Documents like this can be helpful in having a common framework for law enforcement professionals around the globe (ICMEC 2018).
