As the internet has become nearly ubiquitous, child pornography possession has become increasingly widespread. Law enforcement efforts to combat the reach of these images have become increasingly aggressive and sophisticated. Sentences have also dramatically increased. As of 2008, the mean sentence for child pornography possession was ninety–two months, with a mandatory minimum sentence of five years.
Circuit courts have confronted child pornography search warrant applications based mainly upon a prior child molestation conviction or enticement of a minor. Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to establish probable cause for a child pornography search warrant because the connection between the two acts is not well established. However, the Eighth Circuit disagreed, holding that there is an intuitive relationship between both crimes, which can establish probable cause.
This four–part Note analyzes the circuit court split using empirical evidence about the connection between child pornography and child molestation. Although it is a relatively new area of study, social science literature has begun to address the connection between possession of child pornography and child molestation. This Note concludes that, given the relative uncertainty in social science literature, more research should be done before reaching the Eighth Circuit’s holding. A prior conviction for child molestation or an attempt to entice a child should not be enough to establish probable cause to search an individual’s home for child pornography.
Head Versus Heart: Applying Empirical Evidence About the Connection Between Child Pornography and Child Molestation to Probable Cause Analyses,
82 Fordham L. Rev. 1487
Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss3/9