Testimonyof Michael J. Heimbach, Crimes Against Children
Unit, Criminal Investigative Division, FBI
Before
the Subcommittee on Crime, Terrorism, and Homeland Security,
Committee on the Judiciary
United States House of Representatives
May 1, 2002
"Internet Child Pornography"
Mr. Chairman
and distinguished members of the Subcommittee, I welcome this
opportunity to testify on an issue of great importance to
this country and this society: the protection of children
from sexual predators and the government's ability to investigate
and prosecute those sexual predators in light of the Free
Speech Coalition case.
I have
been asked by this Subcommittee to address several specific
issues, and I will address each of those in turn. I have been
a law enforcement officer for more than twenty five years,
and an FBI agent since 1988. For the last twenty months, I
have served as the Unit Chief for the FBI's Crimes Against
Children Unit. As Unit Chief, I am the Program Manager for
all investigations, operations and initiatives involving crimes
against children, including the FBI's Innocent Images National
Initiative. My role in such matters is to provide coordination
between the investigative, behavioral science and administrative
resources of the FBI, as well as the prosecutorial resources
of the Department of Justice.
In preparation
for my testimony I have consulted with SSA James T. Clemente
of the FBI's National Center for the Analysis of Violent Crime,
(NCAVC), Behavioral Analysis Unit, (BAU). SSA Clemente is
a recognized expert in the fields of Child Sex Offender Behavior,
Child Sexual Victimology and Child Pornography. Much of the
information provided in my testimony represents the institutional
knowledge of the NCAVC, BAU and has been accumulated by that
unit over the last quarter century. It is based on interviews
with hundreds of child sex offenders and victims and consultations
with thousands of investigators.
Members
of the NCAVC have personally interviewed offenders and victims
in various settings and consulted on the interviews of thousands
more. SSA Clemente's predecessor at the BAU and perhaps the
most recognized law enforcement expert in the field of Child
Sexual Victimization for the past 20 years has been SSA Ken
Lanning (FBI, Retired as of 2000). As a member of the NCAVC,
BAU, Lanning published numerous peer-reviewed articles and
monographs on the sexual victimization of children and offender
behavioral characteristics. These articles have been cited
in hundreds of publications and the concepts they discuss
have been presented to tens of thousands of law enforcement
officers, attorneys, judges, and mental health professionals
around the world. In fact, Lanning has testified before Congressional
Committees on seven previous occasions.
Before
I turn to your specific inquiries, allow me to express my
appreciation for this Subcommittee's unwavering support of
efforts to identify, investigate and prosecute sexual predators
of children. Your continued support is essential to our success
in the wake of the setback given us by the Supreme Court in
Ashcroft v. Free Speech Coalition. As the Attorney General
has stated, the Court's decision and the Constitution leave
open legislative avenues to protect our children from harm,'
and I thank the Subcommittee for its prompt attention to this
important subject.
The Subcommittee
has asked whether there is any connection between those who
trade or possess child pornography and those who molest children.
Based on my experience and based on my consultation with experts
who have made it their business to study that connection,
my answer is a resounding and alarming - - yes.
The Internet
has caused explosive growth in the market for child pornography.
The volume of child pornography circulated on the Internet
is staggering and the number of persons obtaining, trading
and distributing these images is downright appalling. Recently,
Operation Candyman uncovered more than 7,200 such traffickers
worldwide in a single e-group. The number of e-groups, newsgroups,
bulletin boards, and the like that cater to child pornography
is enormous. Yet, these facts, and this trend, do not sufficiently
capture the gravity of the situation.
Our experience
in the investigation of these crimes also signals a strong
correlation between child pornography offenders and molesters
of children. In Operation Candyman, for example, of the 90
people arrested thus far for their participation in the child
pornography e-group, 13 of them who chose to make inculpatory
statements admitted to molesting a combined total of 48 children.
These offenders included a school bus driver, a foster parent,
a mentor for underprivileged children, a member of the armed
forces, a delivery person, a landscaper, a prison case worker,
a janitor, an office manager, a security guard and his wife.
This number, though alarming, probably represents only a small
fraction of child molestations committed by the more than
7,200 Candyman members - - the vast majority of whom did not
make admissions.
My colleagues
at the U.S. Postal Inspection Service tell me that, according
to statistics compiled from their investigations, a frighteningly
high percentage of the child pornography offenders investigated
were also involved in the sexual molestation of children.
Their studies indicate consistently that, of the total number
of child pornographers investigated over the past several
years, nearly 40 percent have been determined to be child
molesters.
In addition,
in November 2000, Dr. Andres E. Hernandez, PsyD., Director
of the Sex Offender Treatment Program, Federal Bureau of Prisons,
FCI Butner, presented the results of his study of child pornography
offenders entitled, Self-Reported Contact Sexual Offenses
by Participants in the Federal Bureau of Prisons' Sex Offender
Treatment Program: Implications for Internet Sex Offenders.
This study, among other things, explored the correlation between
child pornography offenses and actual child molestation. Dr.
Hernandez' data indicates that the majority of the persons
in his study convicted of child pornography offenses actually
molested significant numbers of children without detection
by the criminal justice system. The study also indicated that
"these offenders target children in Cyberspace in a similar
manner as offenders who prey on children in their neighborhood
or nearby park. They seek vulnerable children, gradually groom
them, and eventually contact them to perpetrate sexual abuse."
I have
attached to my written testimony a summary of the report prepared
by Dr. Hernandez. Dr. Hernandez concluded that 76 percent
of the child pornographers or travelers (those who travel
or intend to travel interstate for the purpose of having sex
with a minor) who participated in his study admitted to having
committed contact sex crimes which went undetected by the
criminal justice system. These offenders had an average of
30.5 child sex victims each. In fact, this group of offenders
admitted to having molested a combined total of 1,433 victims
without ever having been detected. That is not 1,433 more
offenses - - it is 1,433 more victims. If you factor in the
number of times they offended against each individual victim,
the number would be significantly higher. In addition, while
Dr. Hernandez' study lumped child pornographers and travelers
in the same category, his data shows that the number of undetected
sex crimes was significantly higher for child pornographers
than it was for travelers. In short, child pornographers,
who consisted of 49 of the 62 subjects, were responsible for
the vast majority of the 1,433 victims reported for that group.
[The group consisted of 49 Child Pornography Offenders and
13 "Travelers."]
The Subcommittee
has asked whether child molesters use child pornography to
seduce children. Our experience has shown that the answer
to that question is undeniably - - yes. The FBI's Innocent
Images Task Force has conducted several hundred online investigations
where the agents pose as children. The agents report that
sexual predators routinely send images of child pornography
to them as part of the grooming process to increase the likelihood
of a sexual encounter. The child pornography typically depicts
a child of the same age as the Agent's cover having sexual
acts with an older man. The purpose behind this is clearly
to lower the inhibitions of the person the offender believes
is a child and to convince the child that the activity is
fun and acceptable.
Specifically,
we have found that child pornography is used by child molesters
to:
- Demonstrate
sex acts to children. Offenders commonly use pornography
to teach or give instructions to naïve children about
how to masturbate, perform oral sex and/or engage in sexual
intercourse.
- Lower
the sexual inhibitions of children. Some children naturally
fear sexual activities. Some offenders show pictures of
other children engaging in sexual activities to overcome
these fears, indicating to their intended victims that it
is all right to have sex with an adult because lots of other
boys and girls do the same thing.
- Desensitize
children to sex. Offenders commonly show child pornography
to their intended victims to expose them to sexual acts
before they are naturally curious about such activities.
- Sexually
arouse children. Offenders commonly use pornographic images
of other children to arouse victims, particularly those
in adolescence.
Groom
them into a sexual relationship. Some offenders take advantage
of the fact that some children are curious about sex. They
show them images which appear to depict other children enjoying
sexual activities with adults to encourage their victims to
engage in sex. Others take advantage of the guilt and shame
commonly experienced by their victims by taking pictures or
videos of the sexual activities with their child victims to
use as an insurance policy against disclosure by them.
The Subcommittee
has asked whether child pornography seduces child pornographers
to molest children. It definitely has that effect on some
of the collectors. Those who trade in child pornography participate
in organized (like "Candyman") or informal (chat
rooms, F-serves, news groups, bulletin boards, Web sites,
etc.) networks of like-minded individuals, which serve as
support groups. That these individuals can easily find, identify
with, correspond with, and trade child pornography with each
other, gives them comfort in the fact that they are not alone
and tends to validate their offending behavior. They feel
they are part of a vast network of like-minded people who
believe it is acceptable to engage in sexual fantasies about
children, thus lowering their inhibitions about acting on
their fantasies and increasing the likelihood that they will
actually molest children.
The best
indicator of future behavior is a pattern of past behavior.
The next best indicator of future behavior is what an individual
wants to do. Some individuals may be sexually aroused by viewing
images depicting nude children but are repulsed by seeing
images depicting an adult interacting with a child sexually.
Others might enjoy viewing images depicting nude children
but are more excited by viewing depictions of children "playing"
sexually with other children. Others still are aroused by
viewing any image depicting children engaged in sexually explicit
conduct, but are most aroused when viewing images depicting
children engaged in sexual acts with adults.
An individual's
child pornography collection is the best indicator of what
he is fantasizing about. In turn, an individual's fantasies
are the best indicators of what he wishes to do. Therefore,
those who collect images depicting adults engaging in sexually
explicit conduct with children are the most likely to molest
children.
I am
aware of no real evidence that child pornography alone induces
a sexual attraction to children where the offender lacks a
sexual predisposition for children. However, when used by
individuals who have a predisposed sexual interest in children,
child pornography can sexually arouse them, fuel their sexual
fantasies about children, validate their sexual attraction
to children, and help them rationalize this behavior. All
of these behaviors increase the risk that these individuals
will act out their fantasies by sexually molesting children.
Our practical
experience confirms these findings. The FBI's Behavioral Analysis
Unit has conducted interview upon interview of child sex offenders.
The information obtained from the offenders themselves leaves
no doubt that child pornography fuels some child pornographers
to live out their fantasies on real children.
The Subcommittee
has asked about the technology for creating computer-images
of "virtual" children and the effect of the technology
on our ability to prosecute child pornographers. I welcome
the opportunity to discuss the significant impediments that
exist to the successful prosecution of child pornography cases
and will explain why the recent decision of the Supreme Court
in Free Speech Coalition further hinders our ability to bring
these dangerous predators to justice. Before I begin this
discussion, let me make two points very clear: (1) there is
no evidence to suggest that the child pornography circulating
on the Internet today depicts anything but real children;
and (2) law enforcement agents have only been able to successfully
identify a minute fraction of those child victims.
Technological
advances in the area of computer imaging have sparked a debate
about the possibility of creating images of child pornography
without the use of real children - - which I will refer to
as completely computer-generated images. The question is whether
such images can be created that are indistinguishable to a
jury, and even to an expert, from the images of real children.
This
technological debate has led the defense bar to challenge
the reality of the images of child pornography, insisting
that the government disprove that the images are completely
computer-generated to gain a conviction. Despite the fact
that there is no evidence to suggest that these images on
the Internet do not involve actual child victims, this ready-made
defense has had a dramatic impact on the government's ability
to prosecute child pornography offenders.
We have
already had a glimpse of the practical effect of the Court's
decision. Since 1999, when the Ninth Circuit issued its decision
in Free Speech Coalition, there has been a significant adverse
effect on prosecutions in that circuit. Since that decision,
no prosecution has been brought in the Ninth Circuit, with
few exceptions, except in the most clear-cut cases in which
the government can specifically identify the child in the
image. As I noted earlier, such cases are relatively infrequent.
Of course, the Court's decision does not require us to identify
the child depicted, and we are committed to pursuing viable
child pornography cases even when the actual victim is unknown.
But the understandable reaction of front-line prosecutors
in the Ninth Circuit vividly underscores that the practical
problems with proving particular cases will be significant.
This
result has not been limited to the Ninth Circuit. Other districts
have also proceeded cautiously in light of the Ninth Circuit's
decision. Although I have no figures for you today, from my
discussions with prosecutors and fellow agents, I can say
that the number of prosecutions never brought is significant.
That number is going to increase exponentially in the aftermath
of the Supreme Court's decision in Free Speech Coalition.
While the FBI and the Department of Justice are committed
to pursuing these cases - - even where the children are not
identified - - I fear that in many cases, this speculative
technological debate will indeed result in a bitter end.
There
are strong reasons to believe that the images of child pornography
circulating on the Internet today almost universally involve
actual child victims. Leading experts in the field have told
us that it would take an investment of millions, if not hundreds
of millions, of dollars in research and equipment, not to
mention somebody with the type of talent that would guarantee
a lucrative career in Hollywood, to produce an indistinguishable,
completely computer-generated image of a child engaging in
explicit sexual conduct. While consultations with leading
experts in the area indicate that the technology exists that
might theoretically allow for the creation of such images,
it is highly improbable that the producers of child pornography
currently possess such resources. Sadly, it is still far cheaper,
less time consuming, and easier for child pornographers to
use real children to create a high-quality product for distribution.
Moreover,
just because it is highly unlikely that the producers of pornography
possess the resources or the technology to create a new, completely
computer-generated image that would fool a competent expert
into believing that it is an image that depicts a real child,
that does not mean that the Free Speech Coalition case, if
unredressed, will not pose a substantial impediment to child
pornography prosecutions now and in the future. Ironically,
while it may be difficult to fool an expert with a new image,
the same cannot always be said for an old image. Child pornography
circulating on the Internet has, by definition, been digitally
uploaded or scanned into computers and has been transferred
over the Internet, usually in different file formats, from
trafficker to trafficker. An image seized from a collector
of child pornography is rarely a first-generation product;
it may be the 1,000th generation. It is often difficult, if
not impossible, for experts to discern which generation of
a particular image is on an individual's computer. With each
transmission, the "DNA" of the image undergoes a
subtle alteration, which can make it impossible for an expert
to conclusively opine that a particular image depicts a real
child. If the original image has been scanned from a paper
version into a digital format, this task can be even harder
since proper forensic delineation may depend on the quality
of the image scanned and the tools used to scan it. Therefore,
despite the overwhelming probability that images of child
pornography do come from real children, the inability of an
expert to state as a matter of scientific certainty that a
given image seized from a defendant's computer is a picture
of an identifiable child, will severely undermine our ability
to bring these perpetrators to justice.
Because
of the ready-made nature of the "virtual image"
defense to child pornography charges, I am reasonably certain
that, in the future, in cases in which the child victim remains
unidentified, child pornography prosecutions will devolve
into a "battle of the experts" that will sufficiently
confuse jurors and place our prosecutions at risk. The number
of competent experts in the field is few. Because of the limited
number of experts involved and the considerable costs entailed
in retaining such experts, assuming their availability, and
because of the difficulties that face such experts in reaching
definitive conclusions when confronted with images that have
been propagated through multiple generations over the Web,
the foreseeable and tragic result will be that offenders who
possess images of real, but unidentified, children will escape
prosecution and will continue to use such material to harm
still more innocent children. Indeed, in a motion to dismiss
filed the day after the Supreme Court's decision, one alleged
offender has even insisted on the return of his cherished
collection of child pornography, in addition to dismissal
of the charges pending against him.
Let me
add that, while there is no evidence to suggest that completely
computer-generated images of child pornography actually exist
on the Internet, this does not mean that a well-done completely
computer-generated image would not be harmful to real children.
To the lay person, including the vast majority of child predators
and vulnerable children, such images may more than suffice
for the pernicious task at hand. There is every reason to
believe that offenders who obtain and distribute such images
on the Internet can and will use them in much the same manner
that they currently use images with real child victims, that
is, to fuel their fantasies, to whet their appetites for real
children, and to groom real and vulnerable children for sexual
encounters by lowering their inhibitions, desensitizing them
to the sexual acts, and convincing them that the behavior
is acceptable and fun. In short, there is no legitimate place
in our society for lifelike, photo-quality images of children
engaging in explicit sexual conduct, whether that image involves
a real child who has already been victimized or is a seemingly-indistinguishable
image that is used to entice innocent and vulnerable children
into becoming real victims themselves.
The Subcommittee
has also asked me to explain two concepts: morphed imagery
and composited imagery. "Morphing" refers to a software
process in which one image is transformed into another over
a period of time. This term of art is commonly, and erroneously,
used to refer to generic digital image manipulations, but
it actually refers to a fairly simple process. The software
works simply by moving pixels, or individual picture elements,
while changing their color. Take the example of two pictures,
one of a man frowning, and one of a man smiling. The computer
operator wishes to animate the transition between these two
facial expressions. First, the operator would define shapes
on the start and end images, to tell the software that the
mouth is the primary changing feature between the faces. The
software then calculates the in-between mouth positions, and
generates the frames to show the transition. While the end
result might be interesting, it does not capture the minute
but detectable nuances of human expression. While it would
be possible to morph two entirely unlike images, such as a
child and an adult, the end result would not be a believable
hybrid of the two. Morphing only works well if the source
images are extremely similar.
"Compositing"
refers to the digital combination of multiple photographic
images into a single image, in effect cutting up different
photographic prints and then gluing the pieces together to
create a new collage image. The process is simple, and the
software to do it is readily available. However, just as cutting
a picture from a magazine and gluing it over a family snapshot
will not create a believable end product, neither is digital
compositing the magic solution to artificially creating images.
Retouching is a subset of compositing, in which one uses digital
paint tools to modify a digital photograph. Magazines "clean
up" photographs of models by air brushing out blemishes,
for instance. While an expert can certainly alter a photograph
in this way with results that may fool a lay person, a competent
expert can discern the difference between the two. Extensive
retouching leads to an airbrushed, overly smooth look to the
picture, as all the natural detail becomes obscured. Nevertheless,
determining whether an actual minor was used in an image where
compositing is alleged or uncovered may be difficult, because
forensic investigators have only a portion of the child victim's
anatomy to inspect and, thus, fewer investigative clues are
available.
The Subcommittee
has asked that I comment on the threat to children posed by
the sex tourism industry. Sex tourism appears to be a growing
problem in countries where large segments of the population
live in poverty. During the last few years the Justice Department
and the Federal Bureau of Investigation have received increasing
requests for training and advice on combatting this problem.
Of course, children are severely threatened by sex tourism.
Sex tourists are often under the impression that it is "safer"
to have sex with a child than an adult prostitute, and some
adult men do actively seek out young female or male sex partners.
The Administration
has been working with Congressional Staff to broaden our jurisdiction
to prosecute Americans who go abroad to have sex with children
or pay minors for sex. The Administration has proposed legislation
that:
- will
make it easier to prosecute "sex tourists" and
tour operators who serve them by creating a new crime of
knowingly assisting sex tourists who prey on children and
prostitutes under 18 years of age.
- will
allow the United States to prosecute Americans who go abroad
and engage in statutory rape of children, without having
to show the person intended the act before leaving the United
States; and
will
broaden the prohibited sexual acts to include any purchase
of sex from a person under 18 years of age.
Current law, 18 U.S.C. § 2423(b), requires that the government
prove that the defendant intended to engage in statutory rape
when he departed the U.S., which is very difficult to establish.
Our proposal will create a new crime of simply leaving the
country and engaging in statutory rape, or paying any minor
for sex. We will retain the old language and use it for sting
operations or when we have intercepted the traveler prior
to his participation in the sex act. In addition, we cover
all use of minors for prostitution, even if it would not constitute
statutory rape (i.e., minor includes 16 and 17 year-olds).
The U.S. would still be forced to rely on foreign law enforcement
to develop evidence of the crime that occurred abroad. In
addition, we create a new crime of knowingly facilitating
sex tourists, which will help us prosecute sex tour operators.
Finally,
the Subcommittee has asked me to comment about the perception
that pornographers use deceptive practices to lure unsuspecting
children to pornographic sites. This topic is probably best
addressed by the Federal Communications Commission and even
the Federal Trade Commission. Nonetheless, I am aware of this
practice. An April 24, 2002, MSNBC article online revealed
that the FTC was taking action against a pornography company
that falsely advertised free Sony Playstations to lure targets
to their pornography sites.
Let me
finish this testimony by thanking this Subcommittee for seeking
the FBI's input. Collectors of child pornography should not
escape punishment. The correlation between collection of child
pornography and actual child abuse is too real and too grave
to ignore.
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