Judge Gilson continued in relevant part: Just as importantly, the trial courts found that there was clear and convincing evidence that J.G. and C.C. posed moderate risks of sexual re-offending. J.G. had possessed at least six images and twenty-three videos of child pornography. Moreover, he possessed some of that child pornography for more than three years. C.C. had possessed approximately 40,000 images and videos of child pornography, and he possessed some of that material for more than fifteen years. Consequently, there was clear and convincing evidence that both J.G. and C.C. victimized children under the ages of thirteen, those children were strangers, and there were numerous victims. Indeed, both J.G. and C.C. distributed child pornography thereby continuing the revictimization of the children depicted in those videos. See In re Cohen, (2014) (noting that “child pornography, in particular, revictimizes the children involved with each viewing of the same image or video”).
2. The RRAS Itself
J.G. and C.C. again rely on Dr. Witt to challenge the RRAS itself. Dr. Witt pointed out that the committee that developed the RRAS did not expressly consider child pornography, and in particular the effects of the internet on child pornography. Accordingly, Dr. Witt offered three options: (1) not use the RRAS for one-time child pornography offenders and use a different “instrument”; (2) use the RRAS but not score factors three, four, and five; or (3) use the RRAS but create an exception that allows trial courts to classify child pornography-only offenders as Tier One offenders. Moreover, C.C. argues that factors three, four, and five of the RRAS should be scored as low risk (that is, zero) “as a matter of law.”
The flaw in these arguments is that neither J.G. nor C.C. presented any new, validated empirical studies or data supporting their positions. Dr. Witt suggested either using CPORT in place of the RRAS or using the JRAS as a modification to the RRAS. Dr. Witt acknowledged, however, that CPORT had not been validated as an instrument for assessing the risk of re-offense and that the study underlying CPORT had limits. Dr. Witt also acknowledged that the JRAS was developed for juveniles. Data and studies demonstrate that juveniles behave differently, and in particular, more impulsively, than adults. See In Re C.K. (2018) (holding that juvenile sex offenders “are more likely to act impulsively” than adult sex offenders). Indeed, our Supreme Court has recognized that juveniles act differently from adults and therefore, in appropriate circumstances, warrant different treatment. See State v. Zuber, (2017) (quoting Miller v. Alabama, (2012)) (recognizing “children are different, and . . . those differences counsel against irrevocably sentencing them to a lifetime in prison”). We agree with both trial courts that Dr. Witt did not present sufficient studies or data to support modifying or replacing the RRAS with CPORT or the JRAS.
As despicable as any offense involving child pornography may be, there is a counter-argument to using the prolonged possession of a given image or video as an aggravating factor. Repeatedly viewing the same image is better than creating a demand for new images, i.e. creating a demand to victimize additional children.
