The Sixth Circuit recently ruled in a case involving how to apply the sentencing guidelines for sadism in child pornography cases in the Vowels-Harper case.
About the Vowels-Harper case: Sadism in Child Pornography Sentencing
Vowels-Harper was charged with and convicted of several child pornography crimes. The alleged crimes include receiving photos and videos of a pubescent person (as in a person going through puberty) either nude or masturbating. They traded sexually explicit content with each other. Vowels-Harper asked the victim (named “Doe” in the case text) to “play with” and stick a marker in her vagina.
Vowels-Harper pled guilty to “receiving child pornography, 18 U.S.C. § 2252A(a)(2), enticing a minor to engage in illegal sexual activity, id. § 2422(b), and attempting to transfer obscene material to a minor,” and other crimes.
Among other things, the presentence investigation report indicated that “[b]ased on the video of Doe “self-penetrat[ing]” with a marker, the PSR also applied a four-level enhancement for materials that depict “sadistic or masochistic conduct.” Id. § 2G2.1(b)(4)(A).” Vowels-Harper objected to this, but the court overruled the objection. The practical impact to Vowels-Harper was that “sadism enhancement increased Vowels-Harper’s advisory sentence range by roughly eight to ten years.” Vowels-Harper appealed the sentence.
The Sadism Enhancement in the Federal Sentencing Guidelines
About the Federal Sentencing Guidelines
The Sadism Enhancement, and all sentencing enhancements come from the United States Sentencing Guidelines. The Legal Information Institute indicates that “The Federal Sentencing Guidelines are a set of non-binding rules established by the United States federal court system in 1987 to provide a uniform sentencing policy for criminal defendants convicted in the federal court system.” The guidelines are a way to boil down most conduct in America that is connected to crimes and come up with a way for it to be represented at sentencing.
These sentencing regulations are applied according to the regulations themselves as well as court cases that interpret those regulations. The courts can take regulations like these and create tests as to how those regulations are used and under what circumstances.
The Sadism Guideline in Child Pornography cases
The specific guideline here indicates:
If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler, increase by 4 levels (emphasis added)
How to apply the guideline: Pubescence, Insertion and Pain
The court rejected a per se (as in one that applies to everyone) rule and looked at several different determinants in order to make a rule about when this guideline should be applied.
If the depiction involved prepubescent minors then all activity that involves penetration should be considered sadistic and the enhancement should be applied.
Depictions that involve pubescent minors require more to apply the enhancement such as visible and objective markers of “physical pain, emotional suffering, or humiliation.” The court noted that “[t]hose markers can take different forms, like bondage, urination, humiliating costumes or positions, penetration with large or sharp objects, facial expressions denoting distress, or body language suggesting discomfort.” The Court indicated that without more, “the depiction of pubescent minors engaged in penetrative sexual activity alone cannot justify the enhancement.”
The application of these guidelines: The District Court Applied the Wrong Standard
The court went on to note that here, the district court applied the wrong standard and that there was a possibility that the district court could enter a different sentence on remand, especially given the impact that this guideline enhancement could have on the sentence. The Sixth Circuit Vacated the sentence and remanded the case back to the district court.
Conclusion: Make sure that you have the right arguments on your case
This case is very specific to a specific group of people, those being charged with child pornography offenses and looking at very particular enhancements. But there are times where a distinct and critical reading of the guidelines may be necessary to help you. If you are facing child pornography charges then please reach out to the attorneys at Guest and Gray for more assistance.
