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The Slippery Legal Slope of Cartoon Porn 933

Posted by timothy
from the in-a-perfect-world-the-topic-would-not-arise dept.
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.'"
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The Slippery Legal Slope of Cartoon Porn

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  • by Manip (656104) on Monday December 29, 2008 @09:00AM (#26256851)

    The act defines a "child" as a "person":
    (2) the term âchildâ(TM) means a person who has not attained
    the age of 18 years and isâ"
    ââ(A) under the perpetratorâ(TM)s care or control; or
    ââ(B) at least six years younger than the perpetrator;

    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.

    • by Anonymous Coward on Monday December 29, 2008 @09:40AM (#26257135)

      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.

      So I can legally masturbate furiously to a video of a 10-year old being having sex with her father that was filmed eight years ago? Awesome! No seriously, there might be a logical fallacy in what you said.

      • by jambox (1015589) on Monday December 29, 2008 @11:54AM (#26258341)
        Didn't he mean that the character itself is 20 years old? Obviously the in-joke with the Simpsons is that none of the children ever get any older. So it's more like having sex with a midget that looks like a 10-year old but isn't. Isn't it?
      • by Nebu (566313) <nebu&gta,igs,net> on Monday December 29, 2008 @12:37PM (#26258769) Homepage

        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.

        So I can legally masturbate furiously to a video of a 10-year old being having sex with her father that was filmed eight years ago? Awesome! No seriously, there might be a logical fallacy in what you said.

        Is there any significance to your choosing "10" and "8" (perhaps because 10 + 8 = 18?) in your example? I suspect what the OP was getting at is that the cartoon has been around for 20 years (Acccording to Wikipedia, the Simpsons started on December 17th, 1989 -- so actually it's 19 years).

        I'm confident (but haven't checked) that Maggie appeared in the very first Simpsons episode. Therefore, Maggie was conceived on or before December 17th, 1989, making her at least 19 years old. She happens to portray a 2 year old in the fictional world presented by the show, but she herself is 19.

        Personally, I find the notion of "treating cartoon people as real people" to be literally ridiculous (i.e. enticing ridicule), but if the lawmakers choose to go down this path, then I think a logically and legally consistent conclusion would be to treat Maggie as a 19-year old playing a 2 year old character on TV, just as most actors playing teenagers on TV sitcoms are much older than the characters they play as.

        This would put Maggie into the the crosshair of a different law (not sure where the law has jurisdiction, is it still the US?) which says that even if everyone involved is an adult, if they are portraying children, then it's still illegal. IMHO, this latter law should definitely be abolished, because often there is not enough evidence within the fiction itself to say with absolute legal certainty whether a given story is portraying children or not, and thus there is too much subjectivity.

      • by hairyfeet (841228) <bassbeast1968&gmail,com> on Monday December 29, 2008 @02:21PM (#26259939) Journal

        Oh please moron, try to stay on topic. We are talking about a freaking CARTOON here people, just some freaking paint on a bloody page. How the hell can paint be underage? Does anybody else not see the problem with this? If you have a screensaver of your 400 year old elf mage or some crap all it takes is some pervert judge thinking "yeah, that looks a little jailbait to me" and your ass is rotting in jail. Does nobody else see the problem here?

        Let me spell it out: before, with child porn, you had to actually have something involving a child. And it really isn't that had to tell the difference between normal porn and child porn. Now, thanks to these numbnuts, ANY cartoon, animation, drawing, hell even a stick figure can cause you to rot in jail for decades. Because it doesn't matter what it is anymore, it only matters what a judge says it is. Now does everybody see the problem? This thing was so made for abuse it isn't even funny. Literally whether or not you spend the rest of your life in jail will simply be based on what kind of mood the judge is in and how prudish he is. This is thoughtcrime and it isn't even YOUR thoughts you are being punished for, but the thoughts of the judge. How did we fall so far?

        • by SCHecklerX (229973) <thecaptain@captaincodo.net> on Monday December 29, 2008 @03:07PM (#26260409) Homepage

          Thought crimes. C'mon, it's what Chris Hansen is all about. Why don't you have a seat over here?

          Seriously though....if fantasy CP is a crime, so is pretty much all the crap you see on tv, movies, magazines, etc. Even things on the Disney channel and Nickelodeon. Thought crimes. Want to see something even more disturbing? It's that this crap [google.com] is a-ok, and the parents participate. Disgusting.

          Let's ban sci-fi/fantasy/mystery/thriller books and throw their authors in prison while we are at it.

          • by Reziac (43301) * on Monday December 29, 2008 @04:43PM (#26261361) Homepage Journal

            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.

            I'm reminded that some cultures and religions prohibit depictions of humans -- the stated reason is that it's idolatry or soul theft or some such, but one wonders if the foundation might have been something akin to what we're discussing. Imagine the caveman arguing his case before the hetman: "Og drew a picture of me with a knife in my head! Og wants to kill me, and for that Og must pay!" To which the hetman, tired of this argument, responds: "No more drawings of people! And if you disobey me, the sky gods will strike you dead!"

            • by AK Marc (707885) on Monday December 29, 2008 @09:58PM (#26264373)
              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.

              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.
        • by jimicus (737525) on Monday December 29, 2008 @06:22PM (#26262411)

          Where things become difficult (and, I suspect, where this law is aimed at) is when computer-generated images look so realistic that any lay person would have trouble recognising it as being computer generated.

          It prevents real perverts being able to use a defence of "It's all fake, no offence was committed".

          (Before you ask, yes there are talented artists right now producing photorealistic images which are entirely computer generated. I've seen them myself but I haven't been able to dig any examples out).

    • Bad Summary (Score:5, Informative)

      by Goobermunch (771199) on Monday December 29, 2008 @10:09AM (#26257359)

      It's a bad summary.

      The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.

      In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:

      * Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
      * Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
      * Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).

      If each if these prongs is met, then the work is obscene and may be banned.

      In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.

      So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.

      --AC

      • Re:Bad Summary (Score:5, Informative)

        by makomk (752139) on Monday December 29, 2008 @10:44AM (#26257607) Journal

        The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.

        That's not true - two of the three charges were child pornography charges, including one of the two in respect of the drawn images. Under current US law, drawn images are treated exactly the same as real child pornography (but only if they're either obscene or "depict an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lack serious literary, artistic, political, or scientific value" - anything which isn't has 1st amendment protection). Note that there is no requirement of obscenity under the second criterion; I doubt this is generally in issue, but it's possible there are circumstances under which it could be.

        Technically, the charge regarding the drawn images was under 1466A rather than the actual child porn statute, 2252A, but it's only a technical difference - 1466A basically just says that the images are treated exactly the same as real child porn would be under 2252A.

        The other charge regarding the drawn images is indeed an obscenity charge, more specifically one of importing obscene materials. In this case, by "import" they really mean "download from the internet" - the law in question specifically states that downloading from the internet counts as importing. (So putting this in "YRO" may actually be appropriate. Shock horror!) I suspect this law has far wider implications than just child porn.

        • Re:Bad Summary (Score:5, Informative)

          by Goobermunch (771199) on Monday December 29, 2008 @12:25PM (#26258637)

          Here's a link to the opinion: http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf [uscourts.gov]

          Here's the language from the opinion:

          Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.

          By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.

          --AC

          • Re:Bad Summary (Score:4, Insightful)

            by makomk (752139) on Monday December 29, 2008 @03:31PM (#26260641) Journal

            By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.

            Roughly speaking, yes. Since the argument for the exemption of child pornography from First Amendment protection is based on it being created via the abuse of children (though arguably the law has gone beyond this already, for example in relation to the handling of non-nude images) it would be difficult to apply it here. Based on past performances, I wouldn't put it past judges to allow the application of this argument to mere drawings - but the broader law has already been to the Supreme Court and failed, which is the reason the current law is worded the way it is.

            However, the law is specific to child porn, and the punishment is that given for possessing child porn, not that given for possessing obscene material. (The official title is "Obscene visual representations of the sexual abuse of children", but in effect it's an extension to the law on child porn.) Also, my understanding is that possession of obscene material within the home is not, in general, illegal in the US, whereas this law prohibits mere possession. I have a feeling this last aspect may turn out to be unconstitutional, if it hasn't already.

            • Re:Bad Summary (Score:5, Insightful)

              by Reziac (43301) * on Monday December 29, 2008 @04:33PM (#26261253) Homepage Journal

              Let's change the scenario slightly.

              Let's make them cartoons depicting gruesome murders -- but note that as with the kiddie porn, no actual person is harmed. Or at the other end of the scale -- cartoons depicting someone smoking pot, even tho no actual marijuana was grown, harvested, or smoked.

              HOW IS THIS DIFFERENT??

              Under a worst-case interpretation, a cartoon depiction or written description of a crime becomes legally the same as doing the crime itself, and subject to the same penalty as the real thing.

              Under worst-case enforcement, that would pretty much empty most libraries, just for starters.

              I don't have time to wade through and wrap my brain around all the legalese in the decision, but I do know we definitely do NOT want to go down the road of enforcing real penalties against fantasy depictions of crimes, regardless of what that crime may be.

  • by Anonymous Coward on Monday December 29, 2008 @09:01AM (#26256857)

    does it become illegal? Two stick figure drawings with a caption "10 year olds" would be considered illegal if you didn't pencil in some shorts? Madness.

    • by Anonymous Coward on Monday December 29, 2008 @09:12AM (#26256949)

      One best reconsider following Bart's imposition to eat his shorts, or at least drawing such a thing.

      So I assume these judges have signed affidavits of concern with respect to the depictions of a clearly naked Bart Simpson in the latest (and so far only) Simpsons movie? Right?

      What, you mean they haven't? They are only trying to selectively enforce their misinterpretation of the law? Shudder.

      • by multisync (218450) * on Monday December 29, 2008 @11:18AM (#26257933) Journal

        So I assume these judges have signed affidavits of concern with respect to the depictions of a clearly naked Bart Simpson in the latest (and so far only) Simpsons movie? Right?

        Wrong. Naked isn't equivalent to pornographic. If Bart had been depicted in a sex act, that could be considered pornographic. Nudity alone isn't sufficient.

    • by shutdown -p now (807394) on Monday December 29, 2008 @09:41AM (#26257139) Journal

      does it become illegal? Two stick figure drawings with a caption "10 year olds" would be considered illegal if you didn't pencil in some shorts? Madness.

      Makes me wonder, actually? Remember the Muhammad cartoon controversy? Some people actually tried that trick with stick figures then as well; wonder what will happen now.

      This will be the true test of free speech in the West - going not against the taboos of another society, but against ones of our own. Count me a pessimist on this one...

    • Two Words: (Score:5, Insightful)

      by Anonymous Coward on Monday December 29, 2008 @10:12AM (#26257375)
      Witch Hunt.

      Pedophilia and child pornography are morally reprehensible to most people, not to mention damaging to those exploited in its production. It's also worth pointing out that COPA and PROTECT are two prime examples of how our system of government fails to do what it set out to achieve.

      COPA basically stated (among other things) that your first amendment right to free speech was null and void when the content of that speech was fictional child pornography. The supreme court ruled COPA unconstitutional [wikipedia.org], and rightly so, due to the fact that COPA very specifically abridged free speech; something the first amendment [wikipedia.org] very specifically states Congress does not have the power to do.

      Due to the fact that Congress's fast one wasn't able to slip by the Supreme Court (whose job is to filter out this bullshit), they changed a couple of words and relabeled COPA as the PROTECT act. PROTECT, like its predecessor, also abridges free speech by again making fictional work, which is deemed morally reprehensible by the majority of voters who reelected the folks who pushed the bill through----er, wait a minute...

      This is the most prime example I have borne witness to of flagrant abuse of power by the Congress in my life:
      1. Congress passes law.
      2. Supreme court says "wait just a fuckin' minute"
      3. Congress changes wording on law, renames and repasses it, while supreme court bickers over previous law.
      4. ????
      5. Congressman Asshole wins reelection for being "Tough on Crime." (also known in politics as "Profit")

      As long as anything is morally reprehensible enough, Congress can throw the bill of rights out the window to enforce their agenda while the flak takes years to tear its way through the judicial system only to finally be struck down by one court or another.

      Just goes to show that politics really can be a system that clogs down on its own bullshit as long as there's enough of a popular opinion in the first place to ramrod the shit past its initial threshold.
  • by Anonymous Coward on Monday December 29, 2008 @09:02AM (#26256859)

    In Australia, a guy got done for having cartoon porn of the Simpsons.

    http://www.theage.com.au/national/simpsons-cartoon-ripoff-is-child-porn-judge-20081208-6tmk.html

    Yet another reason for me to leave this backward backwater.

  • by Mystery00 (1100379) on Monday December 29, 2008 @09:02AM (#26256863)

    If it's fantasy, you can say the depiction is as old as you want. It's not real, rules of reality don't apply, at all.

  • Disclaimer (Score:5, Insightful)

    by Barny (103770) <bakadamage-slashdot@yahoo.com> on Monday December 29, 2008 @09:04AM (#26256871) Homepage Journal

    So a disclaimer at the bottom that all characters pictured are based off real adults who are merely very young looking would make it safe?

    Ok, so if I draw a picture of a person having sex with a sentient machine (non-human like, lets say a 1m cube with a penis sized hole in one side) and that machine is only 10 years old according to the crappy fan-fic I write about it, does that make it child pornography?

    Oh wait, I know how to use up more of the courts time, where were those rule 34 pictures of ALF and the simpsons I had laying around...

  • by TheRaven64 (641858) on Monday December 29, 2008 @09:04AM (#26256881) Journal
    I was under the impression that the reason for child pornography laws was to protect children from exploitation. It may not be possible to prosecute the people abusing children if they are in a foreign country, but you can help to reduce their market by prosecuting the people who buy their products. How, exactly, does society benefit from prosecuting artists who draw cartoons, however tasteless? The money would be better spent going after mimes.
    • by meist3r (1061628) on Monday December 29, 2008 @09:09AM (#26256925)
      Isn't that the Zeitgeist of today? Persecuting people for looking light they might or abstractly could commit a crime?!
    • by lxs (131946) on Monday December 29, 2008 @09:14AM (#26256963)

      "I was under the impression that the reason for child pornography laws was to protect children from exploitation. "

      No. They're there to pander to the braying mob and instill a climate of fear. This does nothing other than having police chasing shadows, diverting their attention from real abuse cases. Very counterproductive.

      It may not be possible to prosecute the people [for committing crime X] if they are in a foreign country, but you can help to reduce their market by prosecuting the people who buy their products.

      This tactic was a roaring success in the war on drugs. In fact all drug dealers went broke during the first Reagan administration, and now there are no drugs to be had anymore.

    • by vagabond_gr (762469) on Monday December 29, 2008 @09:51AM (#26257205)

      I was under the impression that the reason for child pornography laws was to protect children from exploitation. It may not be possible to prosecute the people abusing children if they are in a foreign country, but you can help to reduce their market by prosecuting the people who buy their products.

      Of course, these laws are about sexual abuse. Because our whole economy is based on products built by abused children on the other side of the planet.

  • Victims? (Score:5, Insightful)

    by qbast (1265706) on Monday December 29, 2008 @09:06AM (#26256889)
    So, who exactly is the victim in this case? If none is required then logically everybody involved in production of any work of (questionable) arts depicting killing, assault, robbery or any other crime should be convicted. Too bad over 80% or more of Hollywood and TV production would become illegal.
  • by Fjan11 (649654) on Monday December 29, 2008 @09:11AM (#26256943) Homepage

    TFA states that he was also convicted for obscene e-mails describing sex acts with children. Anybody else find this even more worrying than the pictures?

    I guess this means you can commit a felony by posting a few choice lines on slashdot?

    (Posting anon since I don't want to be associated with this subject, however remotely)

  • I can only wonder... (Score:5, Interesting)

    by baka_toroi (1194359) on Monday December 29, 2008 @09:13AM (#26256957) Journal
    If pedophiles will get in jail whether they are looking at real CP or drawings depicting children, then why would they bother with fiction? I believe this can only bring a higher consumption of real 3D child porn.
  • Lost our minds (Score:4, Insightful)

    by nehumanuscrede (624750) on Monday December 29, 2008 @09:14AM (#26256959)

    When we start trying to apply the laws of the
    land to the realm of make believe our justice
    system will have officially lost it's mind. . .

    Next we'll be appointing a Cartoon Czar. . .

  • by This name in use (1248516) on Monday December 29, 2008 @09:29AM (#26257041)
    I'm reporting this thread immediately to the DOJ. You are all clearly trying to find loopholes around this important legislation that is vital to protect our cartoons and adults dressed as children.
  • Next up... (Score:5, Funny)

    by Organic Brain Damage (863655) on Monday December 29, 2008 @09:34AM (#26257087)
    ...thinking about having sex with Children. And then writing about thinking about having sex with Children. Ooops. I'm in trouble.
  • by Opportunist (166417) on Monday December 29, 2008 @09:37AM (#26257115)

    For repeated and multiple murder, for torture, both physical and psychological, for cannibalism and for a few other things that I'd have to consult my library for and reread some of his work.

    And while we're at it, I also ask to have the governor of California arrested for ... well, pretty much the same crimes.

    No, they didn't commit them. They only depicted and acted them. But appearantly that difference is no longer important.

  • by rolfwind (528248) on Monday December 29, 2008 @09:38AM (#26257117)

    was that its manufacture directly hurt children (the ones portrayed in it, not some abstract concept). While distasteful, virtual "child" porn, no matter how realistic, seems to be a freedom of speech which is protected under the Constitution. Otherwise, you are creating a thoughtcrime.

    Also is the matter of arguing "age". Some are undeniably children, but we live in a country where 18 years old prosecuted for statutory rape of 16 years old isn't unheard of in our recent histroy. Do we really want to relegate to the prosecutors this power?

    Also consider the common cartoon/anime characteristic of having an adult in mind in an essentially child like body. What then?

    In summary:
    -lack of victim
    -Freedom of Speech, if only popular speech were to be protected, we wouln't need 1st amendment
    -age ambiguities

  • by Simon Brooke (45012) <stillyet@googlemail.com> on Monday December 29, 2008 @10:01AM (#26257303) Homepage Journal

    The serious problem with any witch-hunt - we'll take paedophilia as an example, because it's the current one - is that banning speech about an issue prevents rational discussion of that issue.

    When Charles Dickens was concerned about the condition of children in Victorian London, he wrote novels about it. When Robert Burns wanted to express his opposition to slavery, he wrote poems about it. The novels and poems reached a far wider audience and ultimately affected political change far more effectively than dry factual accounts.

    I'm not arguing that paedophilia is acceptable. It's clearly an abuse of power for adults to prey on non adults. But the boundaries of that condition do have to be explored: why is the age of consent for heterosexual sex in Estonia, Hungary, Italy, Israel and parts of Germany 14, in Denmark, Iceland, France and Greece 15, in Finland and most of the United Kingdom 16, in Northern Ireland 17? Why, in the United States, is sex legal at the age of 14 in many conservative mid-west states, but illegal until 18 in liberal California?

    There's also a concept in many parts of the world that sex between two people of roughly the same age is allowable able at a considerably younger age than sex between a young person and a significantly older person - and that seems to me entirely reasonable.

    But so long as there is a witch-hunt in progress we can't have rational discourse about these things. We certainly can't use fiction to explore the issues. Could Nabokov's Lolita even be published today? This is in the end a civil liberties argument - not because children don't need protecting, of course children need protecting. But so does freedom of speech.

  • How far we've come (Score:5, Informative)

    by BenEnglishAtHome (449670) on Monday December 29, 2008 @10:06AM (#26257337)

    If you're an oldster or a lawyer of the sort who can quote Dost, this may be sad but it isn't surprising.

    For you young 'uns out there, listen up for a history lesson.

    For a very long time in the U.S., child porn was legal. Admittedly, this point can be argued. Some say it was always illegal because it was always obscene. However, it wasn't prosecuted because the possibility existed that it could be produced in a way that was not obscene. Whether it was technically legal or illegal isn't important. The practical matter is that it wasn't prosecuted, wasn't specifically prohibited, and was easily available to anyone who wanted to send off a money order or walk into a big city adult book store.

    IN the mid 1970s, the first laws were passed that said it was illegal. First amendment concerns surfaced but those were beaten back with the argument that producing it required that a crime be committed by an adult against a child. You couldn't produce child porn without actually raping a child. By the early 1980s, it was pretty much illegal everywhere in the U.S., though simple possession didn't get outlawed everywhere, uniformly until then. Even now, there have been major nations that didn't outlaw simple possession until recently. Simple possession didn't become illegal in Brazil, for example, until this year.

    The U.S., though, was a different case. By the mid to late 1980s, the stuff had been mostly stamped out. In fact, immediately before the rise of the ubiquitous home internet connection, nearly all child porn sold in the U.S. was actually sold by the United States Postal Service as a part of sting operations.

    In some of the early court decisions, the first amendment concerns were dismissed with the explicit allowance that depictions of underage sex for artistic purposes could continue unhindered as long as the actors involved were of age. At the time, the example often cited was "The Last Picture Show."

    Since then, things have gradually changed from the sensible to the insane. The changes have been far too many and too complex to outline here and each change has been rather gradual. As the law now stands (IANAL, etc.) literally any picture of a child can be considered porn if a prosecutor can convince a jury that it was produced or possessed for prurient purposes. Nudity is not required. Sexual activity is not required. Prosecutors are willing to proceed on the flimsiest basis when motivated by stupidity or politics, sometimes successfully (the Pierson case, as a lead-in to prosecuting WebeWeb), sometimes unsuccessfully (as in the attempt in Oklahoma to criminalize the highly regarded movie "The Tin Drum.")

    I'm not a big fan of Paul Little (the few minutes I've spent with him on several occasions convinced me that he's an ultimately harmless boor) but he should not be looking at jail time. Yet in this (U.S.) society, all rationality has flown right out the window where this subject is concerned.

    Here are my two main points (and, incidentally, this is why I know so much about the subject):

    1. If you value civil liberties, you need to know about child porn. It's the boogey man, just like "commies" back in the 1950s, that is used as an excuse to build freedom-destroying infrastructure into our laws and communications systems.

    2. The original definition of child porn that justified outlawing it included one central tenet - that producing it requires adults to rape children. Nowadays, a large (probably the overwhelming majority) of child porn is produced by children for the consumption of children and there are no adults involved at any stage. If you have a 12-year-old with a web cam in their room or a digital camera built into their cell phone, there is a much-larger-than-you'd-like-to-admit possibility that you're providing a home for a child porn production studio.

    Combine those two things and we're looking at a situation where child porn can be used to criminalize a huge portion of the populace. Forgive me for drawing parallels where

    • by CPerdue (1376115) on Monday December 29, 2008 @10:39AM (#26257567)
      Those of us who believe we have the right to self defence, and that the single most effective class of tools for that purpose (i.e., firearms) should not be restricted, have been fighting this sort of thing for over a century now. "For the children" is the rallying cry of the tyrant.
    • by apoc.famine (621563) <apoc,famine&gmail,com> on Monday December 29, 2008 @11:01AM (#26257755) Homepage Journal
      Any idea where the "nude = porn" mentality came from? For thousands of years, there was a difference between nude and porn. Taking a picture of your 1-3 year old kids playing in a bathtub, covered with suds, is not child porn. Yet under most current laws, it could be prosecuted as such.

      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...
      • by BenEnglishAtHome (449670) on Monday December 29, 2008 @12:03PM (#26258411)

        Where did your point number two disappear?

        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.

    • by Angst Badger (8636) on Monday December 29, 2008 @04:04PM (#26260979)

      Yet (and I guess this is my biggest point) it's very tough to get anyone to get over their squeamishness about the subject and fight for what's right. ...which reminds me of another area that suffers from a similar problem: the issue of prisoner's rights. We have a prison system -- the most populous in the world, in fact, with more than two million prisoners -- where forcible rape is a normal occurrence and is tacitly accepted as part of the punishment, even for trivial non-violent crimes like, say, passing a bad check. And thanks to HIV and hepatitis, being sentenced to serve time often becomes a de facto death penalty.

      That this amounts, in effect, to the systematic extermination of a substantial number of people is most often met with a yawn, if the topic comes up at all. It wouldn't do to appear to be "soft on crime" -- even if, in this case, being "hard on crime" actually involves encouraging rape and murder.

  • Easy fix. (Score:5, Funny)

    by Blice (1208832) <Lifes@Alrig.ht> on Monday December 29, 2008 @10:08AM (#26257357)
    I'm now declaring that every child character in any cartoon series is actually an adult with a rare disease that keeps them in a child state. They're all over 18.

    PROBLEM SOLVED.
  • Go after God... (Score:5, Insightful)

    by retech (1228598) on Monday December 29, 2008 @10:23AM (#26257457)
    Since God is the attributed author of the Bible, I think we should prosecute god!

    Since Abraham strapped his son to an altar and was in the process of performing ritual sacrifice on him. Or that naked Moses, that's offensive. God only knows what those three "wise" men really wanted with a swaddling clad Jesus and his virgin (and underage I might add) mother.

    If we're going to get the religious right nutters involved, we might as well get the completely involved!
  • by hyades1 (1149581) <hyades1@hotmail.com> on Monday December 29, 2008 @10:42AM (#26257589)

    I wonder where this idiocy will end. It's probably being pushed by the same people who want to make it a crime to burn the US flag. Ask them if it's OK to burn a picture of a US flag, or something that looks like a US flag but is one or two stars short, and they start to look at you with that same lost, betrayed expression a dog gets when you pretend to throw the ball, but hide it behind your back.

    These assholes are a lot more dangerous to society than the occasional pervert who gets off on drawing dirty pictures.

  • The big question (Score:5, Interesting)

    by LihTox (754597) on Monday December 29, 2008 @12:54PM (#26258947)

    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.

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