GUIDELINES LANGUAGE

USSG § 2G2.2(b)(4):

If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler, increase by 4 levels.

The comments clarify that the enhancement applies if the “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, regardless of whether the defendant specifically intended to possess, access with intent to view, receive, or distribute such materials.” Since this comment was added in 2004, the Circuits have concluded that the enhancement is a strict liability provision and that a defendant’s ignorance that they possessed or received such images does not prevent the application of the four-level enhancement.[1]

History

• Nov. 1, 1990: § 2G2.2(b)(3) added to guidelines: “If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.”
• Nov. 1, 2004: Changed to § 2G2.2(b)(4). [2]

[1] United States v. Maurer, 639 F.3d (3d Cir. 2011); United States v. Freeman, 578 F.3d 142, 146 (2d Cir. 2009); United States v. Meschino, 643 F.3d 1025 (7th Cir. 2011)

[2] “The History of the Child Pornography Guidelines,” United States Sentencing Commission (2009)

(A) SADISTIC OR MASOCHISTIC CONDUCT OR DEPICTIONS OF VIOLENCE

There are three ways to show that an image is sadistic and warrants the four-level enhancement:

1. There is evidence of the sexual bondage of minors and the use of weapons in a sexual context[3], or
2. There is evidence that the image depicts the sexual penetration (by an adult male or with an object for sexual purposes) of a prepubescent child, which is inherently sadistic because such conduct is likely to cause pain[4], or
3. There is evidence that the image depicts violence or the infliction of physical or mental pain.[5]

An image is “sadistic” if it depicts conduct that a reasonable viewer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.[6] Therefore, the enhancement does not apply where victims experience emotional pain upon learning of the pornography’s existence after the fact.

Without contemporaneous emotional harm, an image must portray physical pain deemed sadistic. Sexual penetration of an actual prepubescent child qualifies as sadistic.[7]

Analysis of whether an image is sadistic is strictly objective, and not based on speculation of the subjective experience of the person depicted or of the defendant. The court must determine only whether an outside viewer would perceive the depicted activity as causing contemporaneous physical or mental pain.[8] For example, in a case where a victim appeared nervous, was biting her fingernails, looked sad, and used her hand to cover her face, it was determined that a reasonable viewer would perceive her as being in pain and the enhancement applied. On the other hand, a minor engaged in oral sex with an adult male who gave no indication that she was experiencing pain or violence, or was prepubescent, was insufficient for the four-level enhancement.[9]

Depiction of mental cruelty is sufficient for the four-level enhancement.[10] However, this enhancement is not applicable in routine child pornography cases, for they do not necessarily contain depictions of mental cruelty. [11]

Morphed pornography can qualify for the four-level enhancement if the body image shows conduct that is painful or cruel even for an adult.[12] Furthermore, it can qualify if the body image portrayed reasonably appears to be of a prepubescent child (even if it is not) for whom the sex act would be painful, or if the body image is actually a prepubescent child.[13]

The Fifth Circuit ruled that this enhancement did not apply to a charge of interstate transportation of child pornography in which the defendant received and possessed a sadistic image but was transmitting another, non-sadistic image.[14] The First Circuit goes even further by including a defendant’s involvement with obscene material depicting adult sadomasochism as relevant conduct, thus warranting the four-level enhancement for his charge of distributing child pornography. [15]

However, other Circuits split on this issue. The Seventh, Eighth, and Eleventh Circuits applied the four-level sadism enhancement when defendants possessed sadomasochistic pornography but were charged for the receipt/transmission of materials with no portrayals of sadomasochism, determining that conduct outside of the charged offense nonetheless qualifies as relevant conduct.[16]

[3] United States v. Hoey, 508 F.3d 687, 692 n.3 (1st Cir. 2007); United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011)

[4] United States v. Hoey, 508 F.3d 687, 692 n.3 (1st Cir. 2007); United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996)

[5] United States v. Cover, 800 F.3d 275 (6th Cir. 2015); United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir. 2003)

[6] United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017)

[7] United States v. Lyckman, 235 F.3d 234 (5th Cir. 2000)

[8] United States v. Bleau, 930 F.3d 35 (2d Cir. 2019); United States v. Rogers, 989 F.3d 1255 (11th Cir. 2021)

[9] United States v. Bleau, 930 F.3d 35 (2d Cir. 2019)

[10] United States v. Cover, 800 F.3d 275 (6th Cir. 2015)

[11] United States v. Bleau, 930 F.3d 35 (2d Cir. 2019)

[12] United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011)

[13] United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017); United States v. Bach, 400 F.3d 622 (8th Cir. 2005)

[14] United States v. Fowler, 216 F.3d 459 (5th Cir. 2000)

[15] United States v. Schultz, 970 F.2d 960 (1st Cir. 1992)

[16] United States v. Ellison, 113 F.3d 77, 82 (7th Cir. 1997); United States v. Stulock, 308 F.3d 922, 926 (8th Cir. 2002); United States v. Dunlap, 279 F.3d 965 (11th Cir. 2002)

DOUBLE COUNTING

A two-level enhancement for a vulnerable victim and a four-level enhancement for sadistic or masochistic conduct was not improper double counting because the sadistic conduct enhancement accounted for the pleasure experienced by the perpetrator while the vulnerable victim enhancement accounted for the inability of the victim to resist sexual abuse.[17]

A two-level enhancement for the involvement of prepubescent children and a four-level enhancement for masochistic conduct was not improper double counting because causing pain to the prepubescent victim was not taken into account by the two-level enhancement for simply being prepubescent.[18]

An enhancement for the use of a computer and an enhancement for sadistic or masochistic depictions is not improper double counting.[19]

[17] United States v. Holt, 510 F.3d 1007 (9th Cir. 2007); United States v. Nichols, 943 F.3d 773 (6th Cir. 2019)

[18] United States v. Lyckman, 235 F.3d 234, 240 (5th Cir. 2000); United States v. Myers, 355 F.3d 1040 (7th Cir. 2004); United States v. Wright, 373 F.3d 935, 943 (9th Cir. 2004)

[19] United States v. Burns, 834 F.3d 887 (8th Cir. 2016)

(B) SEXUAL ABUSE OR EXPLOITATION OF INFANT OR TODDLER

2G2.2(b)(4) was amended in 2016 to include the sexual abuse or exploitation of an infant or toddler to resolve a circuit split over whether the “vulnerable victim” enhancement (3A1.1(b)) applied to victims who were vulnerable only because they were very young. If 2G2.2(b)(4) applies, 3A1.1(b) does not apply.

[20] 2G2.2 Commentary