CA1: child pr0n sadomasochistic guideline enhancements

US v. Hoey, No. 07-1454.  This appeal involves U.S.S.G. § 2G2.2(b)(4) ( possession of sadistic or masochistic child pornography).  The underlying conviction is under 18 U.S.C. § 2252A(a)(5)(B).  Each of his arguments fails.  Know your safewords and read on. 

As to the argument that the images involved were not of actual children.  The finds that Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) doesn’t require that the government produce experts to show that it actually was a real child involved, and whatever the case there was some expert testimony.

As to the argument that “that the conduct depicted does not qualify as sadomasochistic.”  Looking at the dictionary (still don’t understand why the editors of a dictionary get to write laws)  the court appears to adopt a per se rule that infliction of any kind of pain (even if a necessary component of the criminal conduct depicted) counts as sadomasochistic. This creates a problem: a lot of child pr0n depicts conduct that itself that it illegal and inherently causes pain.  A lot (perhaps most) sadomasochistic activities are not, themselves, illegal, but often deliberately involved real or fake pain.  The First doesn’t seem to unravel these two concepts, but instead seems to veer towards a per se rule.  (I am not going to repeat the First’s analysis of the actual stuff involved.)

As to the argument that “the prosecutor also had to prove the conduct actually occurred.”  But, the First says that “if that were the Sentencing Commission's intent [that actual conduct occur], there would be express language to that effect.”  The First concludes that the commission was looking to punish conduct that causes emotional harm to children (by manipulation of images) even if the depicted conduct didn’t occur.