The Slippery Legal Slope of Cartoon Porn 933
BenFenner writes "Two out of the three Virginia judges involved with Dwight Whorley's case say cartoon images depicting sex acts with children are considered child pornography in the United States. Judge Paul V. Niemeyer noted the PROTECT Act of 2003, clearly states that 'it is not a required element of any offense under this section that the minor depicted actually exists.'"
Re:Victims? (Score:3, Interesting)
I can only wonder... (Score:5, Interesting)
Preventing the Photoshop defence (Score:3, Interesting)
Supposing they found someone with a set of convincing looking child photos on their hard drive. They look realistic but the owner says they had been created within PhotoShop ( or Gimp or whatever ), and no children were harmed. They may have created the image, or they may have filtered the image in PhotoShop to remove any digital signatures from the camera that took the image. Okay, Solomon, how do we settle this one?
Well, there is a legal precedent. Hans Van Meegren, a Dutchman, was accused of selling Old Master paintings to the Nazi occupiers. He argued that the paintings he supplied were fakes. To prove this, he had to produce a convincing painting in court that would have passed for a Vermeer. And he did. Actually, his fakes were not technically accurate - he used things like zinc white instead of the lead white that Vermeer would have used, so the court could have decided on forensic evidence. However, as his recreation of the techniques of Old Masters was better than most other of his age - Tom Keating could have taught him a thing or two - the court required the proof of his talent.
Of course, if you bought some of these images, then we cannot know whether you thought they were real or no. We assume the Nazis thought the Vermeers were real. It seems reasonable to assume any collector of such images thought they were real if they look convincing enough, in the lack of other evidence.
I don't think the aim is to criminalize cartoons which clearly have no human originals, though doubtless there will be factions that will want to apply them that way. If you draw anime images of under-age sex or collect Star Trek homoerotica then people such as I might not want to shake your hand, but we will fight for your rights to do so.
Re:Simpsons porn is child porn too. (Score:3, Interesting)
It's not the best route, but a violent revolution (global this time) seems to be not far off from coming. This stuff doesn't fix itself and what we need is real democracies (and not republics).
My fear is the people that incite the revolutions and take leadership from it will be worse than what we have, setting us back many years.
Commonly the cause of the problem seems to be the generation gap and is exacerbated by technology,greed and politics, basically.
Re:Preventing the Photoshop defence (Score:4, Interesting)
Okay, Solomon, how do we settle this one?
Easy, keep the crime illegal, but treat depictions of the crime like we do depictions of all other crimes, as evidence of a crime and not as a seperate crime.
Two possible reasons to ignore SCOTUS (Score:3, Interesting)
1) The law in question was passed after the SCOTUS ruling. The judges may be thinking that the law was crafted intentionally to avoid infringing on that ruling.
2) The judges may be be hinting to the current supreme court that the 2002 ruling should be revisited. The judges may know good and well that their particular ruling may be overturned, they may just be hoping that the current Supreme Court will narrow the "if there's no real kid in the picture, it's legal" blanket exemption.
Personally, I suspect that #1 is the "cover" reason and #2 is the "real" reason. Why? Human nature.
I hope the circuit court takes this up en blanc and either reverses the 3-judge panel in favor of the 2002 Supreme Court ruling, or gives a point-by-point legal argument to the Supreme Court detailing exactly why the 2002 ruling either does not apply in this case or was itself wrong as it applies to this case and and why it should be refined to exempt cases like this one.
Re:Uhh, yes it does... (Score:2, Interesting)
It's all part of my master plan to get rid of furry porn! Bwahahahha
Since dogs and cats usually don't live more than 18 years, the Neko girls by definition fall into child porn! It's flawless! MUAHAHAHAHAHAHAAHAHAHAHA
Oh wait... Damn Ninja Turtles could be problematic...
It _should_ be (Score:3, Interesting)
Yeah, partly because of that. Cartoon CP shows the other reason. It is illegal because it is immoral. Morality isn't rational and it is easy for the lawmakers to cater to emotions of voters.
Think of the (nonexistant) children!
Re:Uhh, yes it does... (Score:3, Interesting)
Plus as some cartoons are over the age over 18 like the Simpsons for example. They're 20 years old as a point of fact.
It's been over 20 years since the characters of Bart and Lisa Simpson were conceived, yes, but the characters are still canonically depicted to be ages 10 and 8, respectively.
Heck, Nabokov wrote Lolita over 50 years ago. Does that mean that fans of "lolita" erotica are now into "mature" women? No, because the titular character remains perenially twelve.
Re:Simpsons porn is child porn too. (Score:4, Interesting)
Denmark has Internet filtering [opennet.net] (which was kept secret until discovered)
Re:How far we've come (Score:5, Interesting)
Where did your point number two disappear? When did a nude photo become "porn" in any sense? Are we going to start burning 12-15th century paintings now, because they "depict child porn"? Destroying Greek and Roman statues? Hell, even the Sistine Chapel [easyart.com] might be in trouble. Those cherubs look a pretty young...
Guns and porn (Score:3, Interesting)
I've never understood why those two camps don't join forces. I'm in both (I'm pro-free speech and pro-gun rights) but I find very few people who are like me. I've spent a lot of time talking to porn producers and they tend to think of gun owners as a bunch of rednecks that they don't want to associate with. My gun owning friends tend to think of porn producers as sleazy, Godless pervs that they don't want to associate with. Both groups seem to dislike each other intensely on a personal basis.
Both groups are fighting for freedom. They really ought to get together. They have far more in common than they realize.
Re:Simpsons porn is child porn too. (Score:5, Interesting)
Our republic is supposed to be setup so that the majority can't run roughshod over minorities. Democracy is nothing more than codified mob rule.
Tell that to the idiots that think pure democracy is the best thing since sliced bread. I would advocate at least two changes to get us back to what the Republic was supposed to be:
1) Repeal the 17th amendment. Senators should be responsible to the state and not the people, otherwise the US Senate might as well be abolished.
2) Pass a Constitutional Amendment to overturn Reynolds v. Sims [wikipedia.org]. Reynolds v. Sims was a SCOTUS ruling that prohibited state legislatures from drawing districts geographically. So it's ok for the US Senate to be drawn geographically but not for the New York State Senate? WTF was that ruling for other than a urban power grab?
Re:Guns and porn (Score:3, Interesting)
That's because those two groups don't actually believe in freedom; they just notice it when it affects themselves. The gun advocates love guns, and the porn producers love money.
Anyone who consistently speaks up for real freedom will be labeled all sorts of horrible things.
Re:How far we've come (Score:5, Interesting)
That's, imo, a hugely insightful question. My answer is also just my opinion.
I believe we lost that point (defining CP as absolutely requiring that a child had to be raped to make it) when we criminalized simple possession. The problem is we didn't know we had lost anything when we did that.
In the context of the time, criminalizing simple possession was obviously the right thing to do. Back then, the only way to get CP was to buy it. If you possessed it, you had to have bought it. If you bought it, you were giving money to people to encourage them to rape children. That's bad, no matter how you look at it.
Nowadays, things have radically changed. Most CP isn't bought; it's found. Most CP isn't made for monetary profit; it's made by kids messing around and by adults who are seeking self-validation for their perversion by producing and releasing the material. Thus, possessing CP no longer encourages it to be made. If we were just now getting around to outlawing it, we probably wouldn't because outlawing possession no longer has any real purpose, i.e. outlawing possession no longer does anything to encourage or discourage production.
In response to this, lots of other justifications have come along to keep possession illegal. There's the grooming argument; pervs can show their porn to little kids, thus convincing the kids that this behavior is normal. There's also the "continuing rape" theory that says children in CP are raped again, mentally, every time someone looks at the CP in which they appear. That second argument is just goofy-stupid and I dismiss it out of hand. The first argument, however, probably has some small (very small) merit and is enough for me to argue that no change in the legal prohibition against possession is necessary.
The problems arise when we accept any of these arguments *separately* from the original requirement that kids have to be raped to produce the stuff. If, for example, we accept that the possession of any material that can be used to groom children for abuse should be legally proscribed, then we are forced to look the other way when the forces of anti-freedom start outlawing anything they claim can be used for that purpose. They can outlaw text, drawings, photos - literally anything - if we allow the argument that anything that has the potential for misuse should be outlawed.
Since we, as a society, have accepted that the definition of CP no longer requires children to be hurt, we have opened the floodgates. Anything that a legislator considers icky enough can be outlawed. Anything that offends a prosecutor can get you arrested. Thus, things that were previously just dismissed as being, at worst, in bad taste can now result in people doing jail time. Take a picture of kids in the bath or your 10-year-old topless on the beach while vacationing in Brazil? You're risking your freedom. Use a computer to make a picture of some non-existent person who's apparently short and undeveloped? Same story. All a prosecutor has to do is convince a jury you got some kind of sick jollies from the process of creation and, wham-bam, you're in jail.
If you want to define an exact point in time, you should probably look to the early-1980s U.S. Supreme Court case where a film showing shirtless boys counting money on a bed while an adult male got dressed in the background was found to be CP. Given the overall context of the case and the implication of the film that the boys had just been paid for sex, the court held that neither nudity or sexual activity was necessary for the harmful-to-kids production of child porn. Really, though, it was a long process to get to this point. Short of Barack's oldest girl making a porn vid with her best friend and releasing it to the world, I can't imagine anything that could awaken the general populace to the notion that you really shouldn't call something child porn unless it involves grown-ups physically abusing little kids.
Any broader definition is an invitation to rampant irrationality. Just like we have now.
Re:Open and shut case... Kids (Score:3, Interesting)
Just have a panel where the cartoon characters issue a disclaimer stating that they are 25 years old and that any resemblance to persons or events, real or imagined, is purely unintentional.
Problem solved.
Re:At what level of detail (Score:4, Interesting)
How about a cartoon of Muhammad having sex with his 9 year old bride [muhammadanism.org]?
Re:Uhh, yes it does... (Score:3, Interesting)
Does this mean I can legally masturbate to a drawing of two fox cubs in bart and lisa's clothing getting it on, but not a drawing of bart and lisa getting it on?
The big question (Score:5, Interesting)
The big question is: does pornography heighten sexual urges (like an addiction), or satisfy them? If the former, then virtual child pornography might incite a pedophile into seeking out real child pornography or even lead them into child molestation. If the latter, then virtual child pornography can prevent them from taking more drastic action. Someone really needs to do some research and find the answer to this question before we make laws about cartoon child pornography. It's fairly likely that the answer to the question varies from person to person (just as some people can drink casually while others become alcoholics), in which case it would be nice to have some sort of test to see what kind of person any particular pedophile is, for their own benefit.
No one is responsible for whom or what they're sexually attracted to, and that includes pedophiles, necrophiliacs, bestiality fans, etc; they are responsible for controlling those urges when they are inappropriate. That said, people with socially unacceptable fetishes should be treated with sympathy and provided the support they need to control and channel their sexual energy. Painting them as Satanspawn only isolates them, forcing them to find their own ways to cope. If there's a way for people to satisfy their urges without exploiting other people, than that is to everyone's benefit. We should all be lauding the rise of virtual pornography, not condemning it.
mod parent (yuk yuk) up (Score:5, Interesting)
There is nothing wrong with the protective emotion in that nature has selected people with this tendency to survive, as this emotional/instinctive reaction was probably exactly what was needed to actually "protect the children" from an attacking tribe. It's the emotion that causes you to cast aside your fears when something real is attacking but it's now being used to fuel fear of an unknown enemy.
We need to balance our emotional response. Children need protection from real threats. Looking at the child abuse stats from 2006 [hhs.gov] (most recent on the USDHHS site) only 10% of all child abusers are non-parental (and half of that 10% are relatives [hhs.gov], with almost half of what's left after that foster parents/relatives).
If we stick with sexual abuse statistics [hhs.gov], parents and relatives still account for 60% of that, with friends, neighbors, daycare providers and other professionals making up 10%. Under 25% of sexual abuse is "other", which I guess is your classic "child predator" that we hear about on the news. I was always lead to believe that parents never hurt their children and we really need to pass laws against the people "out there" who are stalking our kids. The enemy is in the home already.
A purely emotional reaction ignores these facts and might put resources in the wrong places than it would really be needed to help more of the kids getting abused.
Re:Simpsons porn is child porn too. (Score:1, Interesting)
That doesn't matter. The critique of pure democracy is no less valid for the lack of a suggested replacement.
This was never said or implied. You chose to invent this argument out of thin air and pretend that the AC had made it. You lied, in short.
Re:Uhh, yes it does... (Score:3, Interesting)
3 years old.
http://marinebio.org/species.asp?id=156 [marinebio.org]
So when does Comedy Central get it? (Score:3, Interesting)
South Park, season 8, episode 1.
Cartman walks butt naked across a stage with a small "thing" dangling under him. Was that child porn too?
Fuck this law system.
Re:And the point of these laws is? (Score:3, Interesting)
Having prosecutors adhere to the spirit of the law, not the letter. The law itself is probably fine. The law was designed to protect children from being victimized by adults, not to "protect" a teenager from taking a picture of herself, and everyone knows it. That's the spirit of the law and it is why we have humans decide these things, instead of just blindly typing accusations into a database and having it determine a punishment.
Unfortunately, it seems that humans are frequently career-minded opportunists willing to enforce idiotic nonsense because they can get away with it as the law is written, regardless of what the law meant. And they do this because, quite simply, these sort of cases are easy targets, and our system rewards this sort of behavior (more convictions means more career gain).
Stop rewarding this, and maybe they'll stop going after easy but meaningless targets, and start paying attention to real crimes with real victims.
Comment removed (Score:5, Interesting)
Re:Uhh, yes it does... (Score:2, Interesting)
Err... I recall watching a "making of" in which they revealed that Jeremy Irons had to have a pillow on his lap to legally make out with the actress, who was IIRC 15. (Just FYI, not an argument.)
Re:Uhh, yes it does... (Score:3, Interesting)
If you have a record, or there are other offenses involved, or you have a shitty attitude, though, that's going to stack the odds against you. But I don't think things are quite as bad as the picture you're painting here.
Re:Bad Summary (Score:3, Interesting)
You're proceeding as if child porn were illegal for the reason that it depicts something illegal. But that's not the case, and no legislator or judge has ever suggested that. It is illegal because of its deleterious effects on individuals and on society, combined with its lack of any conceivable beneficial value. Sexual fantasy is an extremely powerful motivator. I don't think it makes any sense to allow materials that serve no purpose other than bolstering adults' fantasies of having sex with children.
Re:Uhh, yes it does... (Score:1, Interesting)
> It is -- and should be IMO -- illegal to portray children having sex.
Why?
If we can portray aliens having sex, cartoon characters having sex, even robots having sex, what makes an image of a child having sex somehow beyond the pale?
I've seen all kinds of fictional depictions of things lewd, twisted, violent, immoral, and disgusting, yet I have no inclination to do these things myself, because A) I can distinguish fantasy from reality and B) I don't worship childhood innocence the way most Americans seem to. Children are not innocent; they can be dishonest, devious, cruel, even deadly. All that is possible without any exposure to books, movies, or sexual abuse.
I don't believe the depiction of children having sex is appropriate for minors to see. I do believe that it should be legal for adults to see. Censorship is a form of violence, and it is ALWAYS worse than the thing being censored.
Re:Uhh, yes it does... (Score:4, Interesting)
I remember reading about a case like this in Canada. Guy picked up girl at the bar when the drinking age was still 21. Went back to her place for sex. Got caught by the parents and charged.
The judge was very apologetic as he sentenced the poor guy to 5 years.
Afterwards the law was actually changed so that honestly believing that someone was of age was a valid defense for statuary rape.
Re:Uhh, yes it does... (Score:3, Interesting)
When I see the human scum that are the product of lax Western culture, it's no mystery why Islamists see us as the incarnation of evil.
And when the western world see's the result of legislated morality in Islamic countries it's no wonder we in turn demonize them.
I agree with most of what you said though. I would love to see this crap disappear and for western civlization to grow up. I just don't trust the goverment with the keys to make that change. Real social change has to happen without their help or you will simply wind up with a dictatorship.
Re:Uhh, yes it does... (Score:3, Interesting)
Rather the point I made up above -- if fantasy depiction of one crime is illegal, and is to be penalised as if it's the real thing -- then ALL fantasy depictions of crimes must, in fairness, be equally penalised as if they are real.
And there goes the contents of most libraries, most film/TV, and anything else that might depict persons or property or intent.
In other words, finally a judge willing to put all Bible toting Christians in prison for a very long time?
II Samuel 13:1-14
And it came to pass after this, that Absalom the son of David had a fair sister, whose name was Tamar; and Amnon the son of David loved her. And Amnon was so vexed, that he fell sick for his sister Tamar; for she was a virgin; and Amnon thought it hard for him to do any thing to her. But Amnon had a friend, whose name was Jonadab, the son of Shimeah David's brother: and Jonadab was a very subtil man.
And he said unto him, "Why art thou, being the king's son, lean from day to day? wilt thou not tell me?"
And Amnon said unto him, "I love Tamar, my brother Absalom's sister."
And Jonadab said unto him, "Lay thee down on thy bed, and make thyself sick: and when thy father cometh to see thee, say unto him, I pray thee, let my sister Tamar come, and give me meat, and dress the meat in my sight, that I may see it, and eat it at her hand."
So Amnon lay down, and made himself sick: and when the king was come to see him, Amnon said unto the king, "I pray thee, let Tamar my sister come, and make me a couple of cakes in my sight, that I may eat at her hand."
Then David sent home to Tamar, saying, "Go now to thy brother Amnon's house, and dress him meat."
So Tamar went to her brother Amnon's house; and he was laid down. And she took flour, and kneaded it, and made cakes in his sight, and did bake the cakes. And she took a pan, and poured them out before him; but he refused to eat.
And Amnon said, "Have out all men from me." And they went out every man from him.
And Amnon said unto Tamar, "Bring the meat into the chamber, that I may eat of thine hand. And Tamar took the cakes which she had made, and brought them into the chamber to Amnon her brother.
And when she had brought them unto him to eat, he took hold of her, and said unto her, "Come lie with me, my sister."
And she answered him, "Nay, my brother, do not force me; for no such thing ought to be done in Israel: do not thou this folly. And I, whither shall I cause my shame to go? and as for thee, thou shalt be as one of the fools in Israel. Now therefore, I pray thee, speak unto the king; for he will not withhold me from thee."
Howbeit he would not hearken unto her voice: but, being stronger than she, forced her, and lay with her.
These are obviously depictions of underage persons involved in explicit acts of sex. I suppose the Bible should also be banned now too?
Re:Bad Summary (Score:3, Interesting)
Is it "bolstering", or is it "satisfying"?
The same argument has been used with regards to violent movies and video games. As of today, there's still no proven link, and there have been claims that, in fact, "letting the steam out" leads to less real-world violence on the whole. I would expect that cartoon (or even realistic) child porn has the same effect on those it affects.
Then again, there's always that "free speech" thing. Unless you can convincingly demosntrate how simulated child porn has "deleterious effects on the society", it should be legal by default - as everything else is. This is the cornerstone of the liberal Western society.
Re:Uhh, yes it does... (Score:5, Interesting)
But this is a special case. Taking a picture of a murder is not itself illegal. However, taking a picture of under-age sex is illegal. So the picture is illegal. It is not that someone made a depiction of an illegal act, but that they made an immitation of an illegal item. The item of child porn itself is a crime. The reason this is to confusing is because child porn has so many thousands of laws against it. There are the rape laws, the statutory rape laws, the child abuse laws, the transporation of minors laws, the traveling across state lines to have sex with a minor laws, the laws against recording such acts, and those are duplicated in every state, the federal level, and possibly on some local city/county levels. So what is "child porn" in this case? It's a photograph of an under-age person and someone else (whether under age or an adult is irrelevant). Child porn can be child porn even if both parties are not in violation of any other law (see the cases of the teens that took pictures of themselves and sent them willingly to others of their age who they were legally sexually active with and were charged with child porn). So, the focus here is not on children, their wellbeing or anything else, it's about a photograph. That photo is illegal. Holding it is illegal. Making it is illegal.
And the case here is whether creation of a simulation that resembles something that could otherwise have been illegal should also be illegal. Remember, child porn isn't about exploitation of children. Taking the picture of two 17-year olds having perfectly legal sex is child porn. Taking a picture of yourself at 17 is child porn, and most laws are written that you could go to jail for taking your own picture. Child porn is about thought police telling people they shouldn't fantasize about under-age people. Supposedly it started out as protection for children by restricting the profit motive for creating child porn, but if that were the actual case, then simulated child porn would be encouraged as a replacement, not discouraged. That leaves thought police as the only other possible explanation of why child porn is illegal and why it should be applied here. But, of course, if you talk like I just did, people attack you as a supporter of child abuse, rather than a person who hates child abuse and wants it stopped, but only with sensible laws that make child abuse illegal, and catch and punish those involved in it.
Just as I'm out of mod points (Score:3, Interesting)
Amen. Amen. Amen.
There are two horrendous memes going around right now that scare me to death:
1. The Government is allowed to do it unless the Constitution says it can't.
As you rightfully point out, this is exactly backward. The Government can't do it until the Constitution says it can. You would think a bunch of geeks would appreciate the power of a "default" setting...
2. The Constitution says the Government can't do that. The Constitution doesn't restrict Corporations from doing that. Therefore, if the Government works through Corporations to do it, it's OK.
I worry about these two wrong-headed ideas, because I've seen one other one rise to power in my life. When Carl Icahn and T. Boone Pickens started chanting in the late '70s, "A Corporation's only obligation is to maximize shareholder value," they were laughed out of the room. I even remember an interview with a Wharton business prof deriding the idea. Of course Corporations have obligations to the community and societies they operate in -- it was the explicit deal spelled out in their corporate charters. The Citizens of the State grant the Corporation limited liability, legal personhood and tax breaks. In return for these favors, Corporations promise to contribute to the General Welfare.
That was the theory, at any rate. At least everyone understood how the game was SUPPOSED to be played, even if the real world never did quite measure up...
Unfortunately, after 30 years of the Big Lie, I talk to kids in college these days who honestly believe, "A Corporation should maximize shareholder value without consideration of morality or the impact on the society at large."
I always ask these kids, "OK, why exactly do we offer Corporations limited liability, the legal fiction of personhood, and lesser tax burdens?"
Mostly they answer, "Just because we do." Some of the more clever ones come up with "To encourage investment in Corporations." When I ask why we should care, they fumble for a bit and mention something about jobs. I point out that proportinately, most jobs in America are now created by the sole proprietorships and partnerships of small businesses. If we're trading no liability and tax breaks in return for jobs, we're getting screwed on the deal.
Ultimately, they shrug their shoulders and say, "I don't know, that's just what I was always told."
It's bad enough my children have to live in a world where everyone thinks businesses have no obligations but to make money. I shudder to think that my grandkids might live in a world where everyone thinks the government can rightfully do whatever it wants.
Re:Uhh, yes it does... (Score:3, Interesting)
Friend of mine got in a world of hurt that way in New Orleans.
Be very careful there.
Apparently she and her boyfriend wanted a threesome, everyone consented, but she had had one drink. That apparently means that she can't give informed consent.
So in New Orleans- ANY AGE female (she was close to 30 and hot) + One Drink = Rape.
Since her boyfriend had a pre-existing relationship with her, he was NOT charged with rape even tho he participated in the same sex act.
Nearly ruined my friend's life. He lost a very good job. Just because he was charged- they didn't even wait for the "not guilty" that came after a settlement with the girl and the judge. Details unknown. He will never go back to NO again.
I don't have a lot of interest myself after hearing that.