Sen. Josh Hawley (R-MO) last week sparked debate after posting the rulings, interviews, articles, and speeches of President Joe Biden’s Supreme Court nominee and accusing her of having a “pattern of letting child porn offenders off the hook for their appalling crimes.”

In the days before Ketanji Brown Jackson’s confirmation hearing, which began on Monday, fact-checkers were quick to scramble to Jackson’s defense, splitting hairs and issuing “whataboutisms” without ever successfully debunking Hawley’s findings. Democrat Sen. Dick Durbin (D-IL) in his opening remarks on Monday even quoted one such column written by Andrew McCarthy for the National Review, using the piece as fodder to back up his opinion that Republicans are attempting to twist Jackson’s record to prevent her confirmation to the highest court in the United States. 

“Despite your record, we’ve heard claims that you are ‘soft on crime.’ These baseless charges are unfair. A conservative National Review columnist called claims brought by one of my colleagues ‘meritless to the point of demagoguery,”’ Durbin leveled at the top of the hearing. “They fly in the face of pledges my colleagues made that they would approach your nomination with civility and respect. And fact-checkers, including the Washington Post, ABC News, and CNN have exposed some of these charges as falsehoods.”

The disturbing and factually inaccurate trend that has emerged with McCarthy’s column and other so-called fact-checks, however, is that they refuse to address Hawley’s concerns head-on, downplay or misunderstand the severity of possessing child sex abuse images, and ignore vast bodies of research about the harm experienced by children in these images.

In the case of the National Review column, McCarthy first establishes his ethos as a prosecutor with nearly 20 years of experience before saying Judge Jackson’s views on child porn possession sentencing are “not only mainstream” but “correct is [his] view.” McCarthy directly refers to Hawley’s concern that Judge Jackson  supported “eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography.”

“I do not exactly have a reputation for being soft on crime. For example, I would have no qualms if Congress imposed a sentence of life imprisonment for real sex offenders who prey on children. But the required five-year sentence we’re talking about is too harsh,” McCarthy wrote, ultimately calling Hawley’s tweets a “smear.” [emphasis added]

At another point in the article, McCarthy seemingly downplays the nature of the crime, comparing a hypothetical “40-year-old miscreant” with a hypothetical “immature 22-year-old who drifted into shameful behavior” [emphasis added], and saying a judge has leeway to distinguish between traffickers and “those who collect because they’re titillated and desensitized…”

Overall, McCarthy claims Hawley “distorted” Jacksons’ record on sex offenders, saying that “after all the throat-clearing,” Hawley is “not talking about offenders who themselves abuse children, or even those who produce pornography. He is referring to porn consumers.”

Here’s the Issue 

At the heart of McCarthy’s column, which has been regurgitated as some kind of evidence by Democrats even Biden’s White House deputy press secretary in favor of Jackson, seems to be the notion that people who possess child sex abuse images are merely looking at pictures and are not “real sex offenders,” though they play a role in demand. 

Of course, there is a legal difference between trafficking, creating child sex abuse images, and possessing them. But McCarthy’s piece, in reality, only contains anecdotes and hypothetical scenarios and does little if no digging into actual research about the nature of child porn offenders.

Insinuating that these offenders are not “real sex offenders” but young men who “drifted into shameful behavior” or are simply “titillated” by images of abused children is a false oversimplification of an extremely dangerous and damaging crime. It is an argument, when politically weaponized by leftists and corporate media, that could ultimately lead to the silencing of the people affected most by these heinous crimes: the children being abused.

WASHINGTON, DC – FEBRUARY 25: U.S. President Joe Biden (L) looks on as Ketanji Brown Jackson, a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit, delivers brief remarks as his nominee to the U.S. Supreme Court during an event in the Cross Hall of the White House February 25, 2022, in Washington, DC. (Photo by Drew Angerer/Getty Images).

Digging Into Data

Hawley is rightly concerned about Jacksons’ past rulings, regardless of whether or not her judgments are on par with a greater trend of judges sympathizing with child porn offenders (like other fact-checkers have suggested).The senator during Monday’s hearing, as well as in a statement in response to another fact-check, pointed to the “exploding severity of child porn usage.”

“A 2019 New York Times report found 45 million images of child pornography that year, more than double from the previous year, and up from less than a million a decade ago,” Hawley said.

The National Center for Missing and Exploited Children (NCMEC) also reported that its Cyber Tipline received 29.3 million reports of suspected child sexual exploitation in 2021, a 35 percent increase from 2020. According to the organization, 99 percent of the reports were for regarded incidents of suspected child sex abuse material. 

Along with the explosion of online child porn consumption (which McCarthy did acknowledge in his column), academic studies have also shed light on the nature of “non-contact” child porn crimes, some concluding that offenders who engage with child sex abuse content online are extremely likely to have abused children in real life.

2020 study out of Iowa State University, which replicated a previous 2016 study and came to the same conclusion, suggests that sexual offenders of even minor offenses are “likely capable of committing more severe sexual crimes than their official records indicate.”

“Of the 216 offenders in DeLisi’s latest study, 73.8 percent admitted to previous sexual abuse, which is consistent with the 2016 study (69 percent). Also, 59 percent of the offenders who were charged with possession or distribution of child pornography, considered a low-risk offense, admitted to previously committing sexual abuse. One offender reported 25 victims,” according to the study.

The study’s author Matt DeLisi said the data replication affirms that sexual offenders of even minor offenses are “likely capable of committing numerous sexual crimes that will forever traumatize their victims.”

“There are two broad ways you can react to this population. One is in favor of crime control, victims and public safety, which is the view I and my fellow authors have,” DeLisi said. “The other view is that it’s not a severe crime because it’s only online behavior and they have no criminal history, so therefore you are being unjustified in viewing them as a higher risk. That is not our view.”

The study is similar to another study executed in 2009 by the Federal Bureau Prisons, which relied on offenders’ self-reporting rather than just conviction records.

“As part of their intensive therapy, the men filled out assessment measures including a “victims list,” where they revealed the number, though typically not the identity, of children they had sexually molested in the past,” the American Psychological Association (APA) said of the study. “…At the time of sentencing, 74 percent of the men had no documented hands-on victimization. But by the end of treatment, 85 percent had admitted they had sexually molested a child at least once, with an average of 13.5 victims per offender, the study finds.”

As far as the “just pictures” argument, specialists in the field, as well as various organizations, have rebutted the idea that viewing child porn is a victimless crime.

“Not only do these images and videos document victims’ exploitation and abuse, but when these files are shared across the internet, child victims suffer re-victimization each time the image of their sexual abuse is viewed,” according to NCMEC. “In a recent survey led by the Canadian Centre for Child Protection, 67 percent of CSAM survivors said the distribution of their images impacts them differently than the hands-on abuse they suffered because the distribution never ends and the images are permanent.”

What’s Next

McCarthy ended his column by arguing that while there are plenty of reasons to oppose Jackson’s nomination, her child porn offender rulings are not one of them.

“And she may in fact be too solicitous of criminals. But the implication that she has a soft spot for “sex offenders” who “prey on children” because she argued against a severe mandatory-minimum prison sentence for the receipt and distribution of pornographic images is a smear,” he concluded.

Hawley, during the hearing, responded to Durbin’s quoting of McCarthy, saying: “The chairman quoted someone earlier today who takes that point of view. I’ll just be honest, I can’t say that I agree with that.”

“Here’s my point — I think it’s difficult against this backdrop to argue that the sentencing guidelines are too harsh or outmoded or that we should be treating child porn offenders more leniently than the guidelines recommend,” he said.

The senator did compliment Jackson during Monday’s hearing on her composure and said she “deserves the [opportunity] to speak for herself on this issue.”

“I’m not interested in trapping Judge Jackson, I’m not interested in trying to play ‘gotcha.’ I’m interested in her answers because I found in our time together that she is enormously thoughtful, enormously accomplished, and I suspect has a coherent view and an explanation and a way of thinking about this that I look forward to hearing.”

Jackson’s hearings before the Senate Judiciary Committee are set to take four days and will give members the opportunity to question Jackson, a judge, and attorney, about her views and record. President Biden chose Jackson to fulfill his promise of putting the first black woman on the Supreme Court. If confirmed, Jackson will fill Justice Stephen Breyer’s seat when he is expected to retire in July.

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