A] death sentence for one who raped but did not kill a child, and who did not intend to assist an... more A] death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."). 90 Id. at 2659.
Special thanks to Tina Lee and Katherine Olson for their tremendous research assistance; to Steve... more Special thanks to Tina Lee and Katherine Olson for their tremendous research assistance; to Steve Young the perfect reference librarian, and Rana Cullers for numerous drafts. A special word of thanks to Paul Cassell and the staff of the Ohio State Criminal Law Review for their patience and insight to devote a volume to crime victims. Dedicated to Sherri Bevan Walsh and her tireless efforts on behalf of victims.
Since the inception of a state-run criminal justice system, many have debated and critiqued its f... more Since the inception of a state-run criminal justice system, many have debated and critiqued its features and goals. Often this dialogue takes place largely among academics and theorists with limited impact on policy and an even more marginal influence on the day to day reality of those most affected by the system. In every generation or so, however, a consequential movement emerges, for better or worse. These include movements regarding the evolution of the prison system,1 the creation of a rehabilitative juvenile court system,2 the implementation of “tough on crime” provisions of the 1980s,3 as well as others. With these types of exceptions, efforts to truly reshape the justice system often remain theoretical. In contemporary times, however, there is the potential for major reform of the criminal justice system as courts, states, and the federal government take some actions to recalibrate sentencing laws and procedures.4 Consequently, pundits and scholars author a plethora of books...
for their thoughts and insights. Thank you to Julie Kendrick and Steve Young for their tireless w... more for their thoughts and insights. Thank you to Julie Kendrick and Steve Young for their tireless work, and Britney Bowater and Jennifer Siegel for their research. Thank you to M.P. Leary for his support and patience. I The term "child abuse images" has been recognized as inadequate. See, e.g., Ethel Quayle, The Impact of Viewing on Offending Behavior, in CHILD SEXUAL ABUSE AND THE INTERNET: TACKLING THE NEW FRONTIER 25, 26 (Martin C. Calder ed., 2004) ("Many professionals working in the area have expressed the belief that such terminology allows us to distance ourselves from the true nature of the material. A preferred term is abuse images."); JANIS WOLAK, DAVID FINKELHOR & KIMBERLY J.
Forensic science transforms criminal investigations by resolving previously unsolvable cases and ... more Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized — such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few — two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis — specifically, deoxyribonucleic acid (DNA) analysis — is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions. However, a different method of examining traditional trace evidence has quietly grown somewhat unnoticed. The emergence of so-called “touch-DNA” evidence and chemical analysis of skin t...
This opinion piece which appeared in the National Law Journal explores the State of New York’s Hu... more This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative. This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services. The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models. Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits. The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.
The world of child sexual exploitation is a complex one including many crimes. Research and casel... more The world of child sexual exploitation is a complex one including many crimes. Research and caselaw indicate that child pornography often is found intertwined with other sexual material demonstrating a sexual interest in children. Such material includes, but is not limited to, sexualized pictures of nude or semi-nude children; surreptitiously recorded videos of children focusing on their breasts or genitals; writings on the most successful methods of facilitating child molestation, etc. That child pornography producers and collectors can often possess some such material is perhaps of no surprise. That criminal courts are referring to such material with the artistic term of “child erotica,” suggesting validation, is problematic. Its use must cease. Within the last decade there has been a significant international movement to replace the term “child pornography” with the label “child abuse images.” This change is motivated by a realization that the latter term more clearly identifies the content of the material, and avoids the suggestion that such victimization is analogous to possessing adult pornography. This paper proposes a second step to this movement, removing from our language the term “child erotica” and replacing it with descriptive norms or, when labels are necessary, the more precise terms of “child exploitation images” and “child exploitation paraphernalia.” Just as the term “child pornography” has been replaced in research and legal circles,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label incorrectly suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued. Third, that the misnomer is emerging in legal opinions compounds the problem. The term has been improperly incorporated by the criminal courts. Divorced from its roots in art and literature, it claims to reference anything, no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography or child abuse images. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one inaccurate label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes. This paper traces the roots of the term as originally intended in the artistic and social science realms. It then analyzes this corrupted use of the term in legal opinions, demonstrating the potential shortfalls of the current misuse. The paper then proposes that in criminal courts a descriptive norm replace this categorical norm when referencing material that is considered sexually exploitive of children, although not child abuse images per se. First Amendment concerns arise whenever one discusses the use of protected speech. The paper discusses these concerns. Within that analysis it eliminates many such concerns by (a) focusing on material unrelated to artistic genres and (b) acknowledging the current legality of much of the material. The paper calls for no controls of speech, but rather a more precise labeling which leads to more accurate legal analysis of evidence in child exploitation cases. Language matters. Labels matter. Socially, language and labels matter because they can reflect cultural norms and values. In criminal litigation, labels matter because inaccurate labels can contribute to inaccurate assessment of evidence which can cause inaccurate results. At times, terms are so inaccurate and misleading, they become damaging. “Child erotica” is such a term and it must be replaced.
This article discusses the issue of restitution for victims of child pornography cases. It specif... more This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.
Society has long struggled with the meaning of privacy in a modern world. This struggle is not ne... more Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and government security interests felt more acutely than within the context of the Fourth Amendment.Notwithstanding the long duration of this struggle, jurisprudentially, the nation is at a critical point. Traditionally, the touchstone for analyzing the boundaries of Fourth Amendment searches is reasonableness. Quite literally, the...
Thanks to the victims, survivors, and their families who bravely share their stories so others ne... more Thanks to the victims, survivors, and their families who bravely share their stories so others need not walk in their shoes. Thanks to MPL, FML, and CEL for their continuous support in this long project. To George and Mary Graw who worked tirelessly to protect and provide. To outstanding research assistants and librarians Steve Young, Christopher Flagg, Rebecca Ryan, Mary-Eileen Sullivan, and Tina Lee, who saw this project from infancy to completion. Thanks to DRB, QCB, and NDW for their encouragement and love. Also to JK for your research support. This end result is just the beginning of allowing the voices of survivors and families to be heard.
This article discusses the issue of restitution for victims of child pornography cases. It specif... more This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.
Over the last decades much progress has been made in the fight against human trafficking. As with... more Over the last decades much progress has been made in the fight against human trafficking. As with any social movement, divisions exists among activists and scholars on the most effective direction to execute social change. Often, these focus on language. One such critical discussion is whether it is appropriate to label human trafficking “Modern Day Slavery.” Although the term has existed for several years, the analogy gained a more full acceptance with its use by President Obama in September 2012 when he described “the injustice, the outrage, of human trafficking which must be called by its true name -- modern slavery.” Questions remain, however, if it indeed must be called that, as the implications are significant.This article argues in support of the position that modern day slavery is an apt label to use as analogy to human trafficking. Acknowledging its costs and imperfections, of which there are several, the label fulfills the goals of analogy because it is an accurate descrip...
than Richmond for their valuable insight. Special thanks to Microsoft for their generous funding ... more than Richmond for their valuable insight. Special thanks to Microsoft for their generous funding of this research. Thanks to Julie Kendrick for patience of countless drafts. Deep gratitude to researcher
1.php (finding an "unequivocal rise of aggression in pornography in both verbal and physical form... more 1.php (finding an "unequivocal rise of aggression in pornography in both verbal and physical forms"). See generally Dolf Zillman & Jennings Bryant, Pornography and Sexual Callousness, and the Trivialization of Rape, 32 J. OF COMM.
It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as p... more It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented."'
The Court must proceed with care when considering the whole concept of privacy expectations in co... more The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment. .. . The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. 1
A] death sentence for one who raped but did not kill a child, and who did not intend to assist an... more A] death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."). 90 Id. at 2659.
A] death sentence for one who raped but did not kill a child, and who did not intend to assist an... more A] death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."). 90 Id. at 2659.
Special thanks to Tina Lee and Katherine Olson for their tremendous research assistance; to Steve... more Special thanks to Tina Lee and Katherine Olson for their tremendous research assistance; to Steve Young the perfect reference librarian, and Rana Cullers for numerous drafts. A special word of thanks to Paul Cassell and the staff of the Ohio State Criminal Law Review for their patience and insight to devote a volume to crime victims. Dedicated to Sherri Bevan Walsh and her tireless efforts on behalf of victims.
Since the inception of a state-run criminal justice system, many have debated and critiqued its f... more Since the inception of a state-run criminal justice system, many have debated and critiqued its features and goals. Often this dialogue takes place largely among academics and theorists with limited impact on policy and an even more marginal influence on the day to day reality of those most affected by the system. In every generation or so, however, a consequential movement emerges, for better or worse. These include movements regarding the evolution of the prison system,1 the creation of a rehabilitative juvenile court system,2 the implementation of “tough on crime” provisions of the 1980s,3 as well as others. With these types of exceptions, efforts to truly reshape the justice system often remain theoretical. In contemporary times, however, there is the potential for major reform of the criminal justice system as courts, states, and the federal government take some actions to recalibrate sentencing laws and procedures.4 Consequently, pundits and scholars author a plethora of books...
for their thoughts and insights. Thank you to Julie Kendrick and Steve Young for their tireless w... more for their thoughts and insights. Thank you to Julie Kendrick and Steve Young for their tireless work, and Britney Bowater and Jennifer Siegel for their research. Thank you to M.P. Leary for his support and patience. I The term "child abuse images" has been recognized as inadequate. See, e.g., Ethel Quayle, The Impact of Viewing on Offending Behavior, in CHILD SEXUAL ABUSE AND THE INTERNET: TACKLING THE NEW FRONTIER 25, 26 (Martin C. Calder ed., 2004) ("Many professionals working in the area have expressed the belief that such terminology allows us to distance ourselves from the true nature of the material. A preferred term is abuse images."); JANIS WOLAK, DAVID FINKELHOR & KIMBERLY J.
Forensic science transforms criminal investigations by resolving previously unsolvable cases and ... more Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized — such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few — two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis — specifically, deoxyribonucleic acid (DNA) analysis — is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions. However, a different method of examining traditional trace evidence has quietly grown somewhat unnoticed. The emergence of so-called “touch-DNA” evidence and chemical analysis of skin t...
This opinion piece which appeared in the National Law Journal explores the State of New York’s Hu... more This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative. This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services. The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models. Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits. The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.
The world of child sexual exploitation is a complex one including many crimes. Research and casel... more The world of child sexual exploitation is a complex one including many crimes. Research and caselaw indicate that child pornography often is found intertwined with other sexual material demonstrating a sexual interest in children. Such material includes, but is not limited to, sexualized pictures of nude or semi-nude children; surreptitiously recorded videos of children focusing on their breasts or genitals; writings on the most successful methods of facilitating child molestation, etc. That child pornography producers and collectors can often possess some such material is perhaps of no surprise. That criminal courts are referring to such material with the artistic term of “child erotica,” suggesting validation, is problematic. Its use must cease. Within the last decade there has been a significant international movement to replace the term “child pornography” with the label “child abuse images.” This change is motivated by a realization that the latter term more clearly identifies the content of the material, and avoids the suggestion that such victimization is analogous to possessing adult pornography. This paper proposes a second step to this movement, removing from our language the term “child erotica” and replacing it with descriptive norms or, when labels are necessary, the more precise terms of “child exploitation images” and “child exploitation paraphernalia.” Just as the term “child pornography” has been replaced in research and legal circles,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label incorrectly suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued. Third, that the misnomer is emerging in legal opinions compounds the problem. The term has been improperly incorporated by the criminal courts. Divorced from its roots in art and literature, it claims to reference anything, no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography or child abuse images. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one inaccurate label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes. This paper traces the roots of the term as originally intended in the artistic and social science realms. It then analyzes this corrupted use of the term in legal opinions, demonstrating the potential shortfalls of the current misuse. The paper then proposes that in criminal courts a descriptive norm replace this categorical norm when referencing material that is considered sexually exploitive of children, although not child abuse images per se. First Amendment concerns arise whenever one discusses the use of protected speech. The paper discusses these concerns. Within that analysis it eliminates many such concerns by (a) focusing on material unrelated to artistic genres and (b) acknowledging the current legality of much of the material. The paper calls for no controls of speech, but rather a more precise labeling which leads to more accurate legal analysis of evidence in child exploitation cases. Language matters. Labels matter. Socially, language and labels matter because they can reflect cultural norms and values. In criminal litigation, labels matter because inaccurate labels can contribute to inaccurate assessment of evidence which can cause inaccurate results. At times, terms are so inaccurate and misleading, they become damaging. “Child erotica” is such a term and it must be replaced.
This article discusses the issue of restitution for victims of child pornography cases. It specif... more This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.
Society has long struggled with the meaning of privacy in a modern world. This struggle is not ne... more Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and government security interests felt more acutely than within the context of the Fourth Amendment.Notwithstanding the long duration of this struggle, jurisprudentially, the nation is at a critical point. Traditionally, the touchstone for analyzing the boundaries of Fourth Amendment searches is reasonableness. Quite literally, the...
Thanks to the victims, survivors, and their families who bravely share their stories so others ne... more Thanks to the victims, survivors, and their families who bravely share their stories so others need not walk in their shoes. Thanks to MPL, FML, and CEL for their continuous support in this long project. To George and Mary Graw who worked tirelessly to protect and provide. To outstanding research assistants and librarians Steve Young, Christopher Flagg, Rebecca Ryan, Mary-Eileen Sullivan, and Tina Lee, who saw this project from infancy to completion. Thanks to DRB, QCB, and NDW for their encouragement and love. Also to JK for your research support. This end result is just the beginning of allowing the voices of survivors and families to be heard.
This article discusses the issue of restitution for victims of child pornography cases. It specif... more This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.
Over the last decades much progress has been made in the fight against human trafficking. As with... more Over the last decades much progress has been made in the fight against human trafficking. As with any social movement, divisions exists among activists and scholars on the most effective direction to execute social change. Often, these focus on language. One such critical discussion is whether it is appropriate to label human trafficking “Modern Day Slavery.” Although the term has existed for several years, the analogy gained a more full acceptance with its use by President Obama in September 2012 when he described “the injustice, the outrage, of human trafficking which must be called by its true name -- modern slavery.” Questions remain, however, if it indeed must be called that, as the implications are significant.This article argues in support of the position that modern day slavery is an apt label to use as analogy to human trafficking. Acknowledging its costs and imperfections, of which there are several, the label fulfills the goals of analogy because it is an accurate descrip...
than Richmond for their valuable insight. Special thanks to Microsoft for their generous funding ... more than Richmond for their valuable insight. Special thanks to Microsoft for their generous funding of this research. Thanks to Julie Kendrick for patience of countless drafts. Deep gratitude to researcher
1.php (finding an "unequivocal rise of aggression in pornography in both verbal and physical form... more 1.php (finding an "unequivocal rise of aggression in pornography in both verbal and physical forms"). See generally Dolf Zillman & Jennings Bryant, Pornography and Sexual Callousness, and the Trivialization of Rape, 32 J. OF COMM.
It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as p... more It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented."'
The Court must proceed with care when considering the whole concept of privacy expectations in co... more The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment. .. . The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. 1
A] death sentence for one who raped but did not kill a child, and who did not intend to assist an... more A] death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."). 90 Id. at 2659.
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Papers by mary leary