How Widespread Is It Among Our Judiciary that Sex With Children is a "Natural Impulse?"

THE JUDGE SAYS: "When I say that, it's my understanding that most men are sexually attracted to young women..I mean women from the time they're 1 all the way up until they're 100." Maddox noted the legal terms malum in se, a Latin phrase meaning an act that is "inherently evil," and malum prohibitum, which means acts that are not necessarily inherently immoral or hurtful, only wrong by statute. He said child pornography could be considered malum prohibitum because in some countries and cultures it is acceptable to engage in sexual conduct with young girls."

--Carson City, Nevada District Judge Bill Maddox


by F.T. NortonAppeal Staff Writer, ftnorton@nevadaappeal.com

March 28, 2007A Carson City man was sentenced to up to 18 years in prison on Tuesday for possessing more than 800 images of child pornography.

Jason Excell, 36, pleaded guilty to 10 counts of possession of child pornography. In exchange for the plea, additional charges were dismissed.

"These kinds of offenses are problems with impulse control," said Carson City District Judge Bill Maddox prior to sentencing. "When I say that, it's my understanding that most men are sexually attracted to young women. When I say young women I don't just mean women that ... you should be attracted to. I mean women from the time they're 1 all the way up until they're 100."

Maddox noted the legal terms malum in se, a Latin phrase meaning an act that is "inherently evil," and malum prohibitum, which means acts that are not necessarily inherently immoral or hurtful, only wrong by statute. He said child pornography could be considered malum prohibitum because in some countries and cultures it is acceptable to engage in sexual conduct with young girls."

"As an example, having sex with a girl between 12 and 16 is prohibited because we say it's prohibited. It's because we decided as a civilized society you do not want adults engaging in sexual conduct with children below 16 years of age, which flies in the face of our, I guess for lack of a better description, our normal impulses," he said.

"I guess we could just ignore them, say it's just like a traffic ticket, it's malum prohibitum, it's only against the law because it's prohibited. Or we could say that because we're trying to control what's an otherwise natural impulse there has to be consequences."The bottom line on it all is the way we're going to control it in my opinion is to ensure that everybody understands what the consequences are if you engage in ... a lack of impulse control. It's likely that most people would find young girls sexually attractive. But we're civilized to the point that we're taught to control our impulses. When you don't, there has to be consequences."

In sentencing Excell, Maddox said he wanted to send a message to others in the community who might possess images of child porn."I want it to be clear to anybody out there that is thinking of downloading them or getting them on CD or ordering them through the mail or whatever, if you get caught possessing them you're going to go to prison in Carson City," he said. Excell was arrested March 3, 2006, after his wife turned over photographs she found on his computer.

According to Deputy District Attorney Kristin Luis, the images are of children "easily under the age of 10," being sexually violated by adults or engaging in sex with other children.

She said at least 88 of the photographs were of children who have been identified by federal authorities through other child pornography cases nationwide. Maddox could have sentenced Excell to between 10 and 60 years. Parole and probation suggested a sentence of two to 12 years. Maddox opted for an additional six years on Excell's sentence so that if he were paroled, he'd be under state supervision longer. Excell is eligible for parole in two years. He was given credit for serving 391 days in jail.

. Contact reporter F.T. Norton at ftnorton@nevadaappeal.com or 881-1213.


Transcripts of sentencing of Jason Excell on child porn charges:1 Case No. 06-01651C2

Department No. IIIN THE FIRST JUDICIAL DISTRICT COURTSTATE OF NEVADA, COUNTY OF CARSON CITYHONORABLE WILLIAM MADDOX
THE STATE OF NEVADA,PARTIAL TRANSCRIPT OF PROCEEDINGS
Plaintiff, JUDGE'S RULINGvs.
MARCH 27, 2007CARSON CITY, NEVADA
JASON ERIC EXCELL,Defendant.

APPEARANCES:FOR THE PLAINTIFF: OFFICE OF THE DISTRICT ATTORNEYBy: KRISTIN N. LUIS, ESQ.885 E. Musser St., Room 203017 Carson City, Nevada 8970318FOR

THE DEFENDANT: OFFICE OF THE PUBLIC DEFENDER19 By: KARIN K. KREIZENBECK, ESQ.RobinsonCarson City, Nevada 89701

FOR DEPT. PAROLE & PROBATION: SHERYL EILENFELDTSUNSHINE REPORTING SERVICES(775) 883-7950 or (775) 323-3411

REPORTED BY: STEPHANIE ZOLKOWSKI, CCR 283COMPUTER-ASSISTED TRANSCRIPTION BY: caseCATalystSUNSHINE REPORTING SERVICES (775) 323-3411CARSON CITY, NEVADA, TUESDAY, MARCH 27, 2007, 11:10 AM

THE COURT: Is there any legal cause to show4 why judgement shouldn't be entered?

MS. KREIZENBECK: No, Your honor.

THE COURT: There being no legal cause toshow why judgement shouldn't be entered, it will bethe judgment of the Court that Jason Eric Excell isguilty of Counts I through X, all category B -- well,Counts I through X, Possession of Child Pornography,first offenses, category B -- felonies, as defined byNRS 200.730 subsection 1.It will be the sentence of the Court that youpay a $25 administrative assessment fee, $60 chemicalanalysis fee and $150 DNA fee.I have been doing -- I have been in the criminal justice system in the State of Nevada andprobably all over the United States for almost 30 years, Mr. Excell. I was the primary person in the DistrictAttorney's office when I was a District Attorney who prosecuted child abuse cases. I consider sexualoffenses against children as abuse. I have come to I think understand a little bit about -- the doctor here didn't really add much tomy knowledge about it. When I was US Attorney my office prosecuted a lot of significant types. One of them was a guy namedRuben Sterling who was the largest pornographer in the world. We prosecuted him.
So I have been involved and had a lot of time to think about it, dealt with victims and even had occasion when I was in private practice to defendpeople accused of it. I have had a lot of experience with this.

It's my impression from all the experts that I have talked to, and it's been a fair number of them, that the doctor, the way he put it, isn't quite theway I put it. These kinds of offenses are problems with impulse control. When I say that it's my understanding that most men are sexually attracted toyoung women. When I say young women I don't just mean women that are appropriately you should be attracted to. I mean women from the time they're one all the way up until they're a hundred.

In some societies it's acceptable to be engaging in sexual conduct with women that are eleven, twelve-, thirteen-years-old. So we overlay that with laws that prohibit any sexual contact with children under 14 and any intercourse with children under 16, which means that those kinds of crimes are not what are called malum prohibitum, evil of themselves, they're crimes that are called malum prohibitum. As an example, having sex with a girl between12 and 16 is prohibited because we say it's prohibited.It's because we decided as a civilized society you do not want adults engaging in sexual conduct with children below 16 years of age, which flies in the face of our, I guess for lack of a better description, our normal impulses.

So what's the answer to that? What's the answer? How do we enforce those laws?I guess we could just ignore them, say it's just like a traffic ticket, it's malum prohibitum, it's only against the law because it's prohibited.

Or we could say that because we're trying to control what's an otherwise natural impulse there has to be consequences. There has to be consequences.

And in the overall scheme of things you're not even close to being the worst offender of our sexual morass that I have seen.4I have prosecuted fathers who force their 14-year old daughter to perform fellatio on them or 20-, 30-year old guy performing sexual acts on a seven-year old girl. Ruben Sterling who purveyed films of people having sex with animals. I have seen a wide spectrum. The bottom line on it all is the way we're8 going to control it in my opinion is to insure that everybody understands what the consequences are if you engage in and it's a lack of impulse control.

It's likely that most people would find young girls sexually attractive.

But we're civilized to the point that we're taught to control our impulses. When you don't, there has to be consequences. So having said all of that, I don't think you're someone that society needs to isolate. I don't -- you can argue about retribution. I don't know who I would be obtaining that for. Rehabilitation. You'll be on parole and you'll be able to get counseling which I absolutely suggest that you do.

I don't know if you have been specifically deterred from engaging in this type of conduct again. But what I do know is, and I have said it before, I want it to be clear what the consequences in this community are of engaging in this kind of conduct that you engaged in. So I'm not going to give you probation.I'm just sitting here and calculating it out. Based on the number of Counts you pled to I could sentence you to 23 years to 60 years which would bethe maximum. I'm not going to do that. Parole and Probation is recommending that I sentence you four years to eighteen -- to four years, eight months to eleven years, two months. I'm not going to do that.
The sentence is going to be on Count I I'll sentence you from 12 to 72 months. Count II I'll sentence you from 12 to 72 months. Actually, I'll sentence you 12 to 72 months on all ten Counts. I'm going to run Counts I, II and III consecutive, which means you're going to be required to spend 36 months to three times 72, whatever that is. My thought process there is that that will allow for you to be supervised for 18 years but you only serve three years in prison, assuming that you get paroled at your first parole date which based on your criminal history and other factors, like I say, you could not be lower on the sexual offender scale.About the only thing that gets you right off the bottom would be the fact you asked that girl to take her clothes off. But other than that I can't imagine someone being lower on the offender scale than you are. On the other hand, and Ms. Kreizenbeck said it, if there isn't a market for these kinds of9 photographs, then hopefully their production will be considerably reduced. To your credit you didn't engage in producing them. You have looks like acted out on your impulse other than that one time. That's really what it's about. It's impulse control.he doctor made the observation not having any substance abuse problems. What happens? You drink, you don't control your impulses as well as you8 should. You use drugs, you don't control your impulses as well as you should. You obviously have less impulse control than I might or other people. I definitely would suggest you don't drink or use drugs, especially if you're going to be around children. But this will give you a sentence of 36 to216 months. The rest of them will be run concurrent. You're given credit for -

MS. EILENFELDT: 391 days.Your honor, there is no chemical analysis fee. So please scratch that.

THE COURT: I want it to be clear to anybody out there that is thinking of downloading them or getting them on CD or ordering them through the mailor whatever, if you get caught possessing them you're going to go to prison in Carson City. That's what is going to happen to you.I don't know it's necessary to specifically deter you but what I would hope is it would be clear to others here thinking about doing the same thing and4 maybe at some point we can accomplish there being no demand for them and, therefore, they won't be produced.Anything more?MS. LUIS: No, Your honor.

THE COURT: That will be the sentence of the court.Good luck, Mr. Excell.(Proceedings concluded at 12:15 p.m.)1 STATE OF NEVADA )) ss.2 CARSON COUNTY )5 I, STEPHANIE ZOLKOWSKI, an Official Reporter of6 the First Judicial District Court of the State of7 Nevada, County of Carson, DO HEREBY CERTIFY: That I was present in the above-entitled Court on MARCH 27, 2007, and took verbatim stenotype notes10 of the proceedings had upon the matter captioned1 within, and thereafter transcribed them into2 typewriting as herein appears;13 That the partial foregoing transcript, consisting of pages 1 through 8, is a full, true andcorrect transcription of my stenotype notes of saidproceedings.17 DATED: At Carson City, Nevada, this________day18 of____________________________, 2007.