Home News Testimony Supreme Court's Child Pornography Decision
  • Michael Heimbach
  • Criminal Investigative Division, Crimes Against Children Unit
  • Federal Bureau of Investigation
  • Before the United States Senate, Subcommittee on Crime, Terrorism, and Homeland Security
  • Washington, DC
  • May 01, 2002

Mr. Chairman and distinguished members of the Subcommittee, I welcome this opportunity to testify on an issue of great importance to this country and this society: the protection of children from sexual predators and the government's ability to investigate and prosecute those sexual predators in light of the Free Speech Coalition case.

I have been asked by this Subcommittee to address several specific issues, and I will address each of those in turn. I have been a law enforcement officer for more than twenty five years, and an FBI agent since 1988. For the last twenty months, I have served as the Unit Chief for the FBI's Crimes Against Children Unit. As Unit Chief, I am the Program Manager for all investigations, operations and initiatives involving crimes against children, including the FBI's Innocent Images National Initiative. My role in such matters is to provide coordination between the investigative, behavioral science and administrative resources of the FBI, as well as the prosecutorial resources of the Department of Justice.

In preparation for my testimony I have consulted with SSA James T. Clemente of the FBI's National Center for the Analysis of Violent Crime, (NCAVC), Behavioral Analysis Unit, (BAU). SSA Clemente is a recognized expert in the fields of Child Sex Offender Behavior, Child Sexual Victimology and Child Pornography. Much of the information provided in my testimony represents the institutional knowledge of the NCAVC, BAU and has been accumulated by that unit over the last quarter century. It is based on interviews with hundreds of child sex offenders and victims and consultations with thousands of investigators.

Members of the NCAVC have personally interviewed offenders and victims in various settings and consulted on the interviews of thousands more. SSA Clemente's predecessor at the BAU and perhaps the most recognized law enforcement expert in the field of Child Sexual Victimization for the past 20 years has been SSA Ken Lanning (FBI, Retired as of 2000). As a member of the NCAVC, BAU, Lanning published numerous peer-reviewed articles and monographs on the sexual victimization of children and offender behavioral characteristics. These articles have been cited in hundreds of publications and the concepts they discuss have been presented to tens of thousands of law enforcement officers, attorneys, judges, and mental health professionals around the world. In fact, Lanning has testified before Congressional Committees on seven previous occasions.

Before I turn to your specific inquiries, allow me to express my appreciation for this Subcommittee's unwavering support of efforts to identify, investigate and prosecute sexual predators of children. Your continued support is essential to our success in the wake of the setback given us by the Supreme Court in Ashcroft v. Free Speech Coalition. As the Attorney General has stated, the Court's decision and the Constitution ‘leave open legislative avenues to protect our children from harm,' and I thank the Subcommittee for its prompt attention to this important subject.

The Subcommittee has asked whether there is any connection between those who trade or possess child pornography and those who molest children. Based on my experience and based on my consultation with experts who have made it their business to study that connection, my answer is a resounding and alarming - - yes.

The Internet has caused explosive growth in the market for child pornography. The volume of child pornography circulated on the Internet is staggering and the number of persons obtaining, trading and distributing these images is downright appalling. Recently, Operation Candyman uncovered more than 7,200 such traffickers worldwide in a single e-group. The number of e-groups, newsgroups, bulletin boards, and the like that cater to child pornography is enormous. Yet, these facts, and this trend, do not sufficiently capture the gravity of the situation.

Our experience in the investigation of these crimes also signals a strong correlation between child pornography offenders and molesters of children. In Operation Candyman, for example, of the 90 people arrested thus far for their participation in the child pornography e-group, 13 of them who chose to make inculpatory statements admitted to molesting a combined total of 48 children. These offenders included a school bus driver, a foster parent, a mentor for underprivileged children, a member of the armed forces, a delivery person, a landscaper, a prison case worker, a janitor, an office manager, a security guard and his wife. This number, though alarming, probably represents only a small fraction of child molestations committed by the more than 7,200 Candyman members - - the vast majority of whom did not make admissions.

My colleagues at the U.S. Postal Inspection Service tell me that, according to statistics compiled from their investigations, a frighteningly high percentage of the child pornography offenders investigated were also involved in the sexual molestation of children. Their studies indicate consistently that, of the total number of child pornographers investigated over the past several years, nearly 40 percent have been determined to be child molesters.

In addition, in November 2000, Dr. Andres E. Hernandez, PsyD., Director of the Sex Offender Treatment Program, Federal Bureau of Prisons, FCI Butner, presented the results of his study of child pornography offenders entitled, Self-Reported Contact Sexual Offenses by Participants in the Federal Bureau of Prisons' Sex Offender Treatment Program: Implications for Internet Sex Offenders. This study, among other things, explored the correlation between child pornography offenses and actual child molestation. Dr. Hernandez' data indicates that the majority of the persons in his study convicted of child pornography offenses actually molested significant numbers of children without detection by the criminal justice system. The study also indicated that "these offenders target children in Cyberspace in a similar manner as offenders who prey on children in their neighborhood or nearby park. They seek vulnerable children, gradually groom them, and eventually contact them to perpetrate sexual abuse."

I have attached to my written testimony a summary of the report prepared by Dr. Hernandez. Dr. Hernandez concluded that 76 percent of the child pornographers or travelers (those who travel or intend to travel interstate for the purpose of having sex with a minor) who participated in his study admitted to having committed contact sex crimes which went undetected by the criminal justice system. These offenders had an average of 30.5 child sex victims each. In fact, this group of offenders admitted to having molested a combined total of 1,433 victims without ever having been detected. That is not 1,433 more offenses - - it is 1,433 more victims. If you factor in the number of times they offended against each individual victim, the number would be significantly higher. In addition, while Dr. Hernandez' study lumped child pornographers and travelers in the same category, his data shows that the number of undetected sex crimes was significantly higher for child pornographers than it was for travelers. In short, child pornographers, who consisted of 49 of the 62 subjects, were responsible for the vast majority of the 1,433 victims reported for that group. [The group consisted of 49 Child Pornography Offenders and 13 "Travelers."]

The Subcommittee has asked whether child molesters use child pornography to seduce children. Our experience has shown that the answer to that question is undeniably - - yes. The FBI's Innocent Images Task Force has conducted several hundred online investigations where the agents pose as children. The agents report that sexual predators routinely send images of child pornography to them as part of the grooming process to increase the likelihood of a sexual encounter. The child pornography typically depicts a child of the same age as the Agent's cover having sexual acts with an older man. The purpose behind this is clearly to lower the inhibitions of the person the offender believes is a child and to convince the child that the activity is fun and acceptable.

Specifically, we have found that child pornography is used by child molesters to:

  • Demonstrate sex acts to children. Offenders commonly use pornography to teach or give instructions to naïve children about how to masturbate, perform oral sex and/or engage in sexual intercourse.
  • Lower the sexual inhibitions of children. Some children naturally fear sexual activities. Some offenders show pictures of other children engaging in sexual activities to overcome these fears, indicating to their intended victims that it is all right to have sex with an adult because lots of other boys and girls do the same thing.
  • Desensitize children to sex. Offenders commonly show child pornography to their intended victims to expose them to sexual acts before they are naturally curious about such activities.
  • Sexually arouse children. Offenders commonly use pornographic images of other children to arouse victims, particularly those in adolescence.

Groom them into a sexual relationship. Some offenders take advantage of the fact that some children are curious about sex. They show them images which appear to depict other children enjoying sexual activities with adults to encourage their victims to engage in sex. Others take advantage of the guilt and shame commonly experienced by their victims by taking pictures or videos of the sexual activities with their child victims to use as an insurance policy against disclosure by them.

The Subcommittee has asked whether child pornography seduces child pornographers to molest children. It definitely has that effect on some of the collectors. Those who trade in child pornography participate in organized (like "Candyman") or informal (chat rooms, F-serves, news groups, bulletin boards, Web sites, etc.) networks of like-minded individuals, which serve as support groups. That these individuals can easily find, identify with, correspond with, and trade child pornography with each other, gives them comfort in the fact that they are not alone and tends to validate their offending behavior. They feel they are part of a vast network of like-minded people who believe it is acceptable to engage in sexual fantasies about children, thus lowering their inhibitions about acting on their fantasies and increasing the likelihood that they will actually molest children.

The best indicator of future behavior is a pattern of past behavior. The next best indicator of future behavior is what an individual wants to do. Some individuals may be sexually aroused by viewing images depicting nude children but are repulsed by seeing images depicting an adult interacting with a child sexually. Others might enjoy viewing images depicting nude children but are more excited by viewing depictions of children "playing" sexually with other children. Others still are aroused by viewing any image depicting children engaged in sexually explicit conduct, but are most aroused when viewing images depicting children engaged in sexual acts with adults.

An individual's child pornography collection is the best indicator of what he is fantasizing about. In turn, an individual's fantasies are the best indicators of what he wishes to do. Therefore, those who collect images depicting adults engaging in sexually explicit conduct with children are the most likely to molest children.

I am aware of no real evidence that child pornography alone induces a sexual attraction to children where the offender lacks a sexual predisposition for children. However, when used by individuals who have a predisposed sexual interest in children, child pornography can sexually arouse them, fuel their sexual fantasies about children, validate their sexual attraction to children, and help them rationalize this behavior. All of these behaviors increase the risk that these individuals will act out their fantasies by sexually molesting children.

Our practical experience confirms these findings. The FBI's Behavioral Analysis Unit has conducted interview upon interview of child sex offenders. The information obtained from the offenders themselves leaves no doubt that child pornography fuels some child pornographers to live out their fantasies on real children.

The Subcommittee has asked about the technology for creating computer-images of "virtual" children and the effect of the technology on our ability to prosecute child pornographers. I welcome the opportunity to discuss the significant impediments that exist to the successful prosecution of child pornography cases and will explain why the recent decision of the Supreme Court in Free Speech Coalition further hinders our ability to bring these dangerous predators to justice. Before I begin this discussion, let me make two points very clear: (1) there is no evidence to suggest that the child pornography circulating on the Internet today depicts anything but real children; and (2) law enforcement agents have only been able to successfully identify a minute fraction of those child victims.

Technological advances in the area of computer imaging have sparked a debate about the possibility of creating images of child pornography without the use of real children - - which I will refer to as completely computer-generated images. The question is whether such images can be created that are indistinguishable to a jury, and even to an expert, from the images of real children.

This technological debate has led the defense bar to challenge the reality of the images of child pornography, insisting that the government disprove that the images are completely computer-generated to gain a conviction. Despite the fact that there is no evidence to suggest that these images on the Internet do not involve actual child victims, this ready-made defense has had a dramatic impact on the government's ability to prosecute child pornography offenders.

We have already had a glimpse of the practical effect of the Court's decision. Since 1999, when the Ninth Circuit issued its decision in Free Speech Coalition, there has been a significant adverse effect on prosecutions in that circuit. Since that decision, no prosecution has been brought in the Ninth Circuit, with few exceptions, except in the most clear-cut cases in which the government can specifically identify the child in the image. As I noted earlier, such cases are relatively infrequent. Of course, the Court's decision does not require us to identify the child depicted, and we are committed to pursuing viable child pornography cases even when the actual victim is unknown. But the understandable reaction of front-line prosecutors in the Ninth Circuit vividly underscores that the practical problems with proving particular cases will be significant.

This result has not been limited to the Ninth Circuit. Other districts have also proceeded cautiously in light of the Ninth Circuit's decision. Although I have no figures for you today, from my discussions with prosecutors and fellow agents, I can say that the number of prosecutions never brought is significant. That number is going to increase exponentially in the aftermath of the Supreme Court's decision in Free Speech Coalition. While the FBI and the Department of Justice are committed to pursuing these cases - - even where the children are not identified - - I fear that in many cases, this speculative technological debate will indeed result in a bitter end.

There are strong reasons to believe that the images of child pornography circulating on the Internet today almost universally involve actual child victims. Leading experts in the field have told us that it would take an investment of millions, if not hundreds of millions, of dollars in research and equipment, not to mention somebody with the type of talent that would guarantee a lucrative career in Hollywood, to produce an indistinguishable, completely computer-generated image of a child engaging in explicit sexual conduct. While consultations with leading experts in the area indicate that the technology exists that might theoretically allow for the creation of such images, it is highly improbable that the producers of child pornography currently possess such resources. Sadly, it is still far cheaper, less time consuming, and easier for child pornographers to use real children to create a high-quality product for distribution.

Moreover, just because it is highly unlikely that the producers of pornography possess the resources or the technology to create a new, completely computer-generated image that would fool a competent expert into believing that it is an image that depicts a real child, that does not mean that the Free Speech Coalition case, if unredressed, will not pose a substantial impediment to child pornography prosecutions now and in the future. Ironically, while it may be difficult to fool an expert with a new image, the same cannot always be said for an old image. Child pornography circulating on the Internet has, by definition, been digitally uploaded or scanned into computers and has been transferred over the Internet, usually in different file formats, from trafficker to trafficker. An image seized from a collector of child pornography is rarely a first-generation product; it may be the 1,000th generation. It is often difficult, if not impossible, for experts to discern which generation of a particular image is on an individual's computer. With each transmission, the "DNA" of the image undergoes a subtle alteration, which can make it impossible for an expert to conclusively opine that a particular image depicts a real child. If the original image has been scanned from a paper version into a digital format, this task can be even harder since proper forensic delineation may depend on the quality of the image scanned and the tools used to scan it. Therefore, despite the overwhelming probability that images of child pornography do come from real children, the inability of an expert to state as a matter of scientific certainty that a given image seized from a defendant's computer is a picture of an identifiable child, will severely undermine our ability to bring these perpetrators to justice.

Because of the ready-made nature of the "virtual image" defense to child pornography charges, I am reasonably certain that, in the future, in cases in which the child victim remains unidentified, child pornography prosecutions will devolve into a "battle of the experts" that will sufficiently confuse jurors and place our prosecutions at risk. The number of competent experts in the field is few. Because of the limited number of experts involved and the considerable costs entailed in retaining such experts, assuming their availability, and because of the difficulties that face such experts in reaching definitive conclusions when confronted with images that have been propagated through multiple generations over the Web, the foreseeable and tragic result will be that offenders who possess images of real, but unidentified, children will escape prosecution and will continue to use such material to harm still more innocent children. Indeed, in a motion to dismiss filed the day after the Supreme Court's decision, one alleged offender has even insisted on the return of his cherished collection of child pornography, in addition to dismissal of the charges pending against him.

Let me add that, while there is no evidence to suggest that completely computer-generated images of child pornography actually exist on the Internet, this does not mean that a well-done completely computer-generated image would not be harmful to real children. To the lay person, including the vast majority of child predators and vulnerable children, such images may more than suffice for the pernicious task at hand. There is every reason to believe that offenders who obtain and distribute such images on the Internet can and will use them in much the same manner that they currently use images with real child victims, that is, to fuel their fantasies, to whet their appetites for real children, and to groom real and vulnerable children for sexual encounters by lowering their inhibitions, desensitizing them to the sexual acts, and convincing them that the behavior is acceptable and fun. In short, there is no legitimate place in our society for lifelike, photo-quality images of children engaging in explicit sexual conduct, whether that image involves a real child who has already been victimized or is a seemingly-indistinguishable image that is used to entice innocent and vulnerable children into becoming real victims themselves.

The Subcommittee has also asked me to explain two concepts: morphed imagery and composited imagery. "Morphing" refers to a software process in which one image is transformed into another over a period of time. This term of art is commonly, and erroneously, used to refer to generic digital image manipulations, but it actually refers to a fairly simple process. The software works simply by moving pixels, or individual picture elements, while changing their color. Take the example of two pictures, one of a man frowning, and one of a man smiling. The computer operator wishes to animate the transition between these two facial expressions. First, the operator would define shapes on the start and end images, to tell the software that the mouth is the primary changing feature between the faces. The software then calculates the in-between mouth positions, and generates the frames to show the transition. While the end result might be interesting, it does not capture the minute but detectable nuances of human expression. While it would be possible to morph two entirely unlike images, such as a child and an adult, the end result would not be a believable hybrid of the two. Morphing only works well if the source images are extremely similar.

"Compositing" refers to the digital combination of multiple photographic images into a single image, in effect cutting up different photographic prints and then gluing the pieces together to create a new collage image. The process is simple, and the software to do it is readily available. However, just as cutting a picture from a magazine and gluing it over a family snapshot will not create a believable end product, neither is digital compositing the magic solution to artificially creating images. Retouching is a subset of compositing, in which one uses digital paint tools to modify a digital photograph. Magazines "clean up" photographs of models by air brushing out blemishes, for instance. While an expert can certainly alter a photograph in this way with results that may fool a lay person, a competent expert can discern the difference between the two. Extensive retouching leads to an airbrushed, overly smooth look to the picture, as all the natural detail becomes obscured. Nevertheless, determining whether an actual minor was used in an image where compositing is alleged or uncovered may be difficult, because forensic investigators have only a portion of the child victim's anatomy to inspect and, thus, fewer investigative clues are available.

The Subcommittee has asked that I comment on the threat to children posed by the sex tourism industry. Sex tourism appears to be a growing problem in countries where large segments of the population live in poverty. During the last few years the Justice Department and the Federal Bureau of Investigation have received increasing requests for training and advice on combatting this problem. Of course, children are severely threatened by sex tourism. Sex tourists are often under the impression that it is "safer" to have sex with a child than an adult prostitute, and some adult men do actively seek out young female or male sex partners.

The Administration has been working with Congressional Staff to broaden our jurisdiction to prosecute Americans who go abroad to have sex with children or pay minors for sex. The Administration has proposed legislation that:

  1. will make it easier to prosecute "sex tourists" and tour operators who serve them by creating a new crime of knowingly assisting sex tourists who prey on children and prostitutes under 18 years of age.
  2. will allow the United States to prosecute Americans who go abroad and engage in statutory rape of children, without having to show the person intended the act before leaving the United States; and

will broaden the prohibited sexual acts to include any purchase of sex from a person under 18 years of age.

Current law, 18 U.S.C. § 2423(b), requires that the government prove that the defendant intended to engage in statutory rape when he departed the U.S., which is very difficult to establish. Our proposal will create a new crime of simply leaving the country and engaging in statutory rape, or paying any minor for sex. We will retain the old language and use it for sting operations or when we have intercepted the traveler prior to his participation in the sex act. In addition, we cover all use of minors for prostitution, even if it would not constitute statutory rape (i.e., minor includes 16 and 17 year-olds). The U.S. would still be forced to rely on foreign law enforcement to develop evidence of the crime that occurred abroad. In addition, we create a new crime of knowingly facilitating sex tourists, which will help us prosecute sex tour operators.

Finally, the Subcommittee has asked me to comment about the perception that pornographers use deceptive practices to lure unsuspecting children to pornographic sites. This topic is probably best addressed by the Federal Communications Commission and even the Federal Trade Commission. Nonetheless, I am aware of this practice. An April 24, 2002, MSNBC article online revealed that the FTC was taking action against a pornography company that falsely advertised free Sony Playstations to lure targets to their pornography sites.

Let me finish this testimony by thanking this Subcommittee for seeking the FBI's input. Collectors of child pornography should not escape punishment. The correlation between collection of child pornography and actual child abuse is too real and too grave to ignore.

 
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