The Court conducted a SORA risk assessment hearing in this criminal case. Defendant was convicted by plea of guilty in July of 2009 of one count of possession of child pornography under federal law for which he received a sentence of two years imprisonment and five years of supervised release. Defendant was apprehended in a “sting” operation in which he responded to a solicitation to buy child pornographic videos by postal inspectors. He was subsequently arrested and a search of his home computer uncovered 300–600 images primarily of pre-pubescent girls clothed, naked or being sexual abuse. He was released from prison to federal supervised release in December of 2011.
A New York Child pornography attorney said that defendant is 33 years old and has had no other contacts with the criminal justice system. He has suffered from severe problems with depression and social anxiety arising from prior physical abuse by his father. Psychiatric evaluations indicated that he posed little risk of committing a contact sex offense. His prospects for committing another child molestation crime, however, were less certain. Defendant’s counsel argued that the Defendant did not view the child pornographic images on his computer for sexual pleasure but rather because he identified with the pain and abuse the children in the videos had suffered. In the Court’s view, however, the evidence indicated that the Defendant also may well have been motivated at least in part by sexual desire.
The evidence indicated that although defendant could not be diagnosed with pedophilia, such a diagnosis could also not be ruled out. Defendant has expressed remorse for his crime. He currently lives and cares for his ailing mother in public housing but would apparently have to move out of his mother’s apartment if he were designated as anything other than a level 1 offender. He has been complying with the requirements of his supervision.
The question of whether child pornography defendants should be scored with RAI points because the “relationship” between the defendant and his victims is one of a “stranger” was addressed by the Court of Appeals in a case. In the said case, the defendant argued that such points were not justified because the “stranger” risk factor was intended to apply only to contact offenses. In analyzing the issue, the Court first looked at the Commentary to the RAI written by the Board. The Commentary asserts that one of the primary reasons for adding points for stranger victims is that “the need for community notification is generally greater when the offender strikes at persons who do not know him well”
The Court went on to note that the assessment of points for stranger victims in child molestation cases produce “a seemingly anomalous result, one the authors of the Guidelines may not have intended or foreseen”.
In another case, the Court explained why the “stranger” factor was not written with a view towards child pornography cases. The RAI was written in January of 1996 and slightly revised in a manner not relevant here in 1997. The current version of the Commentary was published in 2006 but the 2006 Commentary modified the original instrument only to include updated statutory language and clarification. The 2006 version of the Commentary lists 36 articles upon which the RAI is based. The most recent of these articles was published in 1995. The most significant research and learning in the field of sex offender risk assessment, however, has occurred during the ensuring 17 years. New York’s child pornography statute was enacted shortly after the RAI was promulgated. The simple possession of child pornography was not a crime under New York law when the “stranger” factor was written. The instrument thus was obviously not written, as the Court of Appeals surmised, with “possessors of child pornography in mind”.
Despite its concerns, the Court of Appeals in a case law held that points for stranger victims had to be assessed under the RAI in the case before it because to do otherwise would be to “distort the text of [RAI] factor 7 to avoid an unjust result in cases like this”. The remedy, the Court held, in cases where the RAI s point scoring system led to an inappropriate result was for a court to depart downward to an appropriate risk level.
The more significant question is what the Statement is intended to say. After outlining concerns regarding stranger and victim number scoring the Statement asserts that it will “address” these concerns and provide more accurate assessments by continuing to score points for the age of criminal victims and then depart from presumptive risk levels based on a variety of newly articulated factors. What is conspicuously absent is any mention of what the Board will do henceforth in scoring for stranger or multiple victims. The implication seems to be that child pornography offenders should no longer be scored for such factors. But that basic point is cryptically omitted. Any ambiguity in that regard was resolved in this case, however, by the Board’s Case Summary and proposed RAI. Those Board documents scored the Defendant only with 30 points for victim age. What was implied in the Position Statement, therefore, was clarified by the Board’s proposed RAI score in this case, although the Board provided no reason in this case for not scoring for stranger or multiple victims.
The Court has long believed that our law has afforded undue deference to the RAI and Commentary. In the Court’s view, however, the instant Position Statement is entitled to the same deference as the Board’s other policy pronouncements. It was written by the Board as an official policy statement. The fact that it is labeled as a Position Statement rather than a Commentary, Appendix, Note or other interpretive aid, in the Court’s view, is irrelevant to its controlling authority. Indeed, it is the only policy pronouncement by the Board which has not been informed solely by archaic scientific evidence.
The “emotional identification with children” factor in the Position Statement is also derived from the Hanson article. The article notes, however, that this pattern in the literature is “most commonly found among extrafamilial child molesters”. Under the RAI and Commentary, however, it will now be a consideration only in child pornography cases. Many of the most well-documented factors which predict recidivism among sex crime offenders, meanwhile, including age, time spent offense-free in the community, the presence of male victims or the presence of extra-familial victims continue to be absent from the considerations courts are directed to consider in setting risk levels for any offenders.
When compared to prior practice, the Position Statement likely will result in more accurate initial scoring determinations. The recidivism rates for child pornography offenders when compared to other sex offenders appear to be low. The Position Statement, however, in this Court’s view, continues to leave courts with no useful guidance in determining whether to depart from presumptive RAI scores in setting risk levels.
The list of considerations courts are asked to review in making such determinations all have some relevance. But they do not provide a template courts can rely upon in predicting risk. The list includes a couple of significant factors related to recidivism. But it also omits many more clearly relevant factors which are not otherwise provided for by the RAI or Commentary. It includes a few factors which may indicate that an offender is particularly invested in online sexual content. This Court is not aware of any empirical basis to conclude, however, that these discrete factors increase the risk to re-offend. Even assuming such factors do predict recidivism, moreover, the Position Statement excludes numerous other considerations which might indicate those identical tendencies.
Will recommend an automatic override to Level 3 in cases where clinical documentation exists detailing a mental abnormality that decreases the ability to control impulsive sexual abuse behavior, such as Pedophilia or Hebephilia, as provided for on the Guidelines.
The Board remains concerned about child pornography offenders, and in the majority of cases, believes that they have a sexually deviant interest in children which poses a significant risk to public safety; however, recognizes that each person convicted of a child pornography offense poses risks that are unique to that individual. These images are in essence crime scene photos of children being sexually abused, and the increased demand for these images results in further sexual victimization of children.
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