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John Grisham Is Right: Looking Isn't The Same As Touching

Wendy Kaminer: "Why was Grisham’s criticism of child porn sentencing laws so widely and reflexively condemned? Why was he pressured into offering an apology?" Pictured: Author John Grisham, who said that the United States is handing out unduly harsh prison  sentences for child pornography offenses to men who probably just had too much to drink and "pushed the wrong buttons." (Jose Luis Magana/AP)
Wendy Kaminer: "Why was Grisham’s criticism of child porn sentencing laws so widely and reflexively condemned? Why was he pressured into offering an apology?" Pictured: Author John Grisham, who said that the United States is handing out unduly harsh prison sentences for child pornography offenses to men who probably just had too much to drink and "pushed the wrong buttons." (Jose Luis Magana/AP)
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In protesting lengthy prison sentences for downloading images of child porn, John Grisham was pointing out an obvious injustice: the equation of people who view child porn with people who molest children. In fact, you may even be sentenced more harshly for viewing child pornography than for molesting a child.

Consider the case of Morton Berger, a 57-year-old first offender and former high school teacher who received 20 consecutive 10-year sentences for downloading 20 images of child porn. He was not charged with producing or selling porn or abusing any children. His crime was virtual voyeurism; he received a 200-year sentence, with no possibility of parole, for viewing images on a computer. The Arizona courts upheld this sentence, and the Supreme Court refused to hear an appeal based on an Eighth Amendment claim of cruel and unusual punishment.

Looking at sexually explicit images of children...is not a victimless crime. But surely there are degrees of crime and degrees of victimization.

Why, then, was Grisham’s criticism of child porn sentencing laws so widely and reflexively condemned? Why was he pressured into offering an apology? In part, the reaction to his remarks focused on his surprisingly stupid complaint that “60-year old white men” were being imprisoned pursuant to unjust laws. That complaint merited an apology, or at least a qualification, since so many more black men are now and always have been unjustly imprisoned.

But Grisham didn’t apologize for racial stupidity. He apologized, rather cravenly, for asserting that men like Morton Berger who have never physically abused children, should not be treated like active pedophiles and sentenced to years (if not lifetimes) in prison. That seems like common sense to me, but it’s an unpopular opinion these days, when the line between words and action is not just blurred but, in some cases, practically invisible.

The tendency to conflate words and actions dates back, in part, to the feminist anti-porn movement of the 1980s, which characterized pornography involving particular adult women as assaults on all women and violations of our civil rights. Anti-porn, civil rights legislation developed by Catherine MacKinnon and Andrea Dworkin was struck down in federal court years ago, but the drive to censor speech as “action-like” endured. Today, sexually explicit images involving children or adults, sexually explicit language or any language said to demean, offend or harass any member of a presumptively disadvantaged group are liable to be treated as actual assaults or abuses, especially on college campuses.

It shouldn’t be controversial to opine that molesting a child is a much more deranged and evil act than viewing an image of molestation, much less an image of a child in a sexually explicit pose.

Of course, child pornography is especially troubling, and advocates of harshly punishing people who view it argue that by providing a market for porn, they abet its production. Looking at sexually explicit images of children, they insist, is not a victimless crime. But surely there are degrees of crime and degrees of victimization.

It shouldn’t be controversial to opine that molesting a child is a much more deranged and evil act than viewing an image of molestation, much less an image of a child in a sexually explicit pose. In fact, when Grisham protested the excesses of sentencing laws for possessing child porn, he was echoing the sentiments of federal judges who are often required to hand down sentences they do not consider just. Why did Grisham apologize? I doubt he has suddenly changed his mind about sentencing practices, and I assume he can afford any decline in book sales that might have been occasioned by his initial remarks. What did he have to lose by standing up for what I bet he still believes? His popularity perhaps, but that seems a small price to pay for the integrity to speak out against injustice.


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Wendy Kaminer Cognoscenti contributor
Wendy Kaminer, a lawyer and social critic, writes about law, liberty, feminism, religion, and popular culture and is currently a correspondent at The Atlantic. Her latest book is "Worst Instincts: Cowardice, Conformity and the ACLU."

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