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Simulated child pornography in the United States is illegal on a federal level, and enforced depending on the statute of a given state. The term Simulated child pornography refers to depictions that appear to be minors but which is produced without the direct involvement of children in the production process itself. Types of simulated child pornography include (but are not limited to): modified photographs of real children, non-minor teenagers made to look younger (age regression), fully computer-generated imagery, and adults made to look like children. The first major law enacted against simulated child pornography occurred in 1996, but later had two of its major provisions later struck down in 2002 for being too broad. The current law dealing with the topic was enacted in 2003 through "Section 1466A of Title 18". Legal challenges have since been brought forward regarding broad wording again, with at least one district court judge ruling two parts of the law unconstitutional. The mainstream media has not picked up any cases since 2012, when a man from Missouri entered a plea bargain to "possession of cartoons depicting child pornography".

History

1973 - 2002

The legal treatment of simulated child pornography in the United States requires an understanding of the components of that phrase: pornography, child, and simulated. United States law treats these as separate concepts. In the United States, pornography is considered a form of personal expression, and thus governed by the First Amendment to the Constitution. Pornography is generally protected speech, unless it fails the Miller obscenity test, as the Supreme Court of the United States held in 1973 in Miller v. California. In 2002, the United States Supreme Court ruled in Ashcroft v. Free Speech Coalition that two provisions of the Child Pornography Prevention Act of 1996 (CPPA) were unconstitutionally overbroad. The basis for the ruling was that the CPPA made unlawful some forms of protected First Amendment speech, banning depictions of sex between children even if not obscene and not involving real child victims. Under New York v. Ferber, if the depiction is of real child abuse or a real child victim, as a result of photographing a live performance, for instance, then it is not protected speech. Under Miller v. California, obscene speech is likewise excluded from First Amendment protection.

2003 - PROTECT Act

In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) which was signed into law on April 30, 2003, by President George W. Bush. The PROTECT Act amended part of the previous law on child pornography by adding an affirmative defense which states that "the alleged child pornography was not produced using any actual minor or minors". This new act also modified the law by changing the previous "appears to be a minor" section with "indistinguishable from that of a minor" phrasing. It is specified that "the term 'indistinguishable', used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults."

The PROTECT Act also enacted 18 U.S.C. § 1466A, which states:

"Section 1466A of Title 18, United State Code, makes it illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene."

The code was also written with a three-pronged test that is based on an "average" "reasonable" person's point of view. The possible findings include: "appeals to prurient interests", works that "depict or describe sexual conduct in a patently offensive way", and works that "taken as a whole, lack serious literary, artistic, political, or scientific value." By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value. The mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the internet, or transported across state lines. There is also an affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement.

The first major case occurred in December 2005, when Dwight Whorley was convicted in Richmond, Virginia under 18 U.S.C. 1466A for using a Virginia Employment Commission computer to receive "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males". On December 18, 2008, the Fourth Circuit Court of Appeals affirmed the conviction, consisting of 20 years imprisonment. Whorley appealed to the Supreme Court, but this was denied.

2008 - present

Response to "18 U.S.C. § 1466A" has been met with legal challenges regarding its vague wording. In particular the law testing the criminalization of a "visual depiction of any kind" has since been tried in courts. In October 2008, a 38-year-old Iowa comic collector named Christopher Handley was prosecuted for possession of explicit lolicon manga. The judge ruled that two parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional, but Handley still faced an obscenity charge. Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of his lawyer, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images in question.

Drawn child pornography has been in a legal grey area ever since this late 2008 ruling. While two parts of the PROTECT Act were ruled unconstitutional by one federal court, laws regarding drawn child pornography still differ between states. Several states have laws that explicitly prohibit cartoon pornography and similar depictions, while others have only vague laws on such content. In California such depictions specifically do not fall under state child pornography laws, while in Utah they are explicitly banned. On a federal level, works depicting minors that offend contemporary community standards and are "patently offensive" while lacking "serious literary, artistic, political, or scientific value" continue to stand as illegal. Pornographic parody images of popular cartoon characters such as The Simpsons have also since been challenged as a particular concern.

Due to the fact that obscenity can only be determined by a sitting judge and jury in reference to local standards and definitions on a state-by-state, case-by-case basis, this ultimately leaves the legality of drawn or fictitious pornography depicting minors in a 'grey area' much like other forms of alternative pornography. Some states pay no mind to the contents of such materials and determine obscenity based on time and place an offense may occur, while others have strict, well-defined standards for what a community may be allowed to find appropriate. Others only may have vague laws or definitions which are only used to allow the government to opportunistically prosecute recidivist offenders on both a federal and state level, despite such materials being presumed protected speech if no real minors are used.

Legal cases

2010 Idaho case

In October 2010, 33-year-old Idaho man Steven Kutzner entered into a plea agreement concerning images of child characters from the American animated television show The Simpsons engaged in sexual acts. The case was originally brought up due to the fact that the German Federal Police identified and reported to U.S. authorities Kutzner's IP address as one where a known file containing actual child pornography was being shared. During the forensic investigation, which uncovered "six hundred and thirty two (632) image files, seventy (70) of which were animated images graphically depicting minors engaging in sex acts", "five-hundred-and-twenty-four (524) pornographic image files, most of which depict what appears to be teenaged females", and "more than eight-thousand files containing images child erotica involving younger children, many of them prepubescent", Kutzner admitted that he had knowingly received photographic child pornography "for at least eight years".

2011 Maine case

In November 2011, Joseph Audette, a 30-year-old computer network administrator from Surry, Maine, was arrested after his username was linked to child pornography sites. A search inside Audette's home resulted in "anime child pornography". Audette was never formally charged subsequent to his arrest; after he posted bail, a judge eventually lifted all bond restrictions placed on him.

2012 Missouri case

In October 2012, after being reported by his wife, a 36-year-old man named Christian Bee in Monett, Missouri entered a plea bargain to "possession of cartoons depicting child pornography", with the U.S. attorney's office for the Western District of Missouri recommending a 3-year prison sentence without parole. The office in conjunction with the Southwest Missouri Cyber Crimes Task Force argued that the "Incest Comics" on Bee's computer "clearly lack any literary, artistic, political, or scientific value". Christian Bee was originally indicted for possession of actual child pornography, but that charge was dropped as part of a plea deal, and was instead charged with possession of the "Incest Comics".

Opinions

The hentai subgenres known as lolicon and shotacon have been the subject of much controversy regarding impact on child sexual abuse. The reported link between the use of child pornography and child abuse has been used to justify the prohibition of sexual depictions of children, whether their production involves child abuse or not. This argument has been disputed as having a lack of scientific basis for that alleged connection pending future studies. Other arguments state that restricting sexual expression in drawings or animated games and videos might actually increase the rate of sexual crime. This would be done by eliminating a non-criminal outlet for desires that could motivate crime.

In regards to "18 U.S.C. § 1466A", legal professor Reza Banakar has stated that "serious artistic value" is very difficult to evaluate, and that the legal task of evaluating the lack of such value cannot be executed objectively.

Second Life controversy

In 2007, the virtual world online computer game Second Life banned what its operator describes as "sexual 'ageplay', i.e., depictions of or engagement in sexualized conduct with avatars that resemble children". The ban prohibits the use of childlike avatars in any sexual contexts or areas, and prohibits the placement of sexualized graphics or other objects in any "children's areas" such as virtual children's playgrounds within the game environment. Those Second Life residents who are caught ageplaying are given a warning stating that their actions are considered "broadly offensive" within the Second Life community and that "the depiction of sexual activity involving minors may violate real-world laws in some areas." (Duranske 2008).

Second Life is not the only community facing virtual child pornography allegations. In 2007, World of Warcraft banned the player organization "Abhorrent Taboo", because the organization allowed player characters to engage sexually with role-playing children and real children. (Duranske 2007).

See also

• Legal status of drawn pornography depicting minors
• Child Pornography Prevention Act of 1996
• Pedophilia

References

1. Paul, B. and Linz, D. (2008). "The effects of exposure to virtual child pornography on viewer cognitions and attitudes toward deviant sexual behaviorArchived 2008-05-13 at the Wayback Machine," Communication Research, 35(1), 3-38
2. Virtueel filmpje geldt ook als porno, AD, March 11, 2008
3. "Bush signs child protection bill". CNN. April 30, 2003. Retrieved 2003-05-01.
4. https://www.law.cornell.edu/uscode/text/18/2252A
5. https://concernedwomen.org/s-151-the-protect-act-virtually-legalizing-virtual-child-porn/
6. http://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1012&context=barrylrev
7. https://www.law.cornell.edu/uscode/text/18/2256
8. "Citizen's Guide To U.S. Federal Law On Obscenity". United States Department of Justice. Retrieved September 17, 2019.
9. 18 U.S.C. § 1466A(d)
10. 18 U.S.C. § 1466A(e)
11. "Richmond man first convicted under expanded child-porn law". Archived from the original on 2005-12-25. Retrieved 2006-01-12. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
12. Flannery, Sara E.; Damon A. King (November 2006). "Prosecuting Obscene Representations of the Sexual Abuse of Children" (PDF). Internet Pornography and Child Exploitation. United States Department of Justice. Retrieved 2007-02-12.
13. Artefact (2009-01-07). "20 Years for Loli Manga". Sankakucomplex.com. Retrieved 2012-07-22.
14. "Text of 4th circuit court of appeals decision on United States v. Whorley" (PDF). Caselaw.lp.findlaw.com. Retrieved 2012-07-22.
15. "Court of Appeals Affirms Cartoons of Child Porn Are Illegal". Fox News. December 19, 2008. Retrieved January 4, 2009.
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17. "Docket No. 09-6521 - Dwight Edwin Whorley v. United States". Supreme Court of the United States.
18. Iowa Collector Charged for Allegedly Obscene Manga from AnimeNewsNetwork on October 10, 2008
19. "Manga Collection Ruled 'Child Pornography' By US Court". io9.com, May 28, 2009
20. https://web.archive.org/web/20161121063828/http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=311-312.7 California Obscenity Laws
21. "Utah State Legislature". Archived from the original on 7 May 2015. Retrieved 28 July 2015.
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24. https://www.ohchr.org/Documents/HRBodies/CRC/Guidelines/USA.pdf
25. Former teacher pleads guilty to downloading 'Simpsons' porn Archived 2013-05-25 at the Wayback Machine Oct 14, 2010
26. Steven Kutzner Plea Agreement October 4, 2010
27. ^ "United States Of America, Plaintiff, vs. Steven Kutzner, Defendant: Government's Sentencing Memorandum" (PDF). United States District Court For The District Of Idaho. Retrieved 19 January 2017.
28. "State court lifts restrictions on ex-Deer Isle-Stonington school employee accused of child porn".
29. http://www.animenewsnetwork.com/news/2011-11-19/restrictions-lifted-on-maine-man-arrested-for-explicit-anime Restrictions Lifted on Maine Man Arrested for Explicit 'Anime'
30. Jacob Sullum (31 January 2013). "Missouri Man Gets 3 Years for Reading 'Incest Comics'". reason.com. Retrieved 19 November 2016.
31. "Monett man pleads guilty to possession of child-porn cartoons". Joplin Globe. Retrieved 28 July 2015.
32. "Christian Bee admits having child porn cartoons". ksdk.com. Archived from the original on 30 October 2013. Retrieved 28 July 2015. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
33. Missouri Man Pleads Guilty To Possession of "Cartoon" Child Porn published 19 October 2012 by Johnathan Grey Carter of Escapist Magazine.
34. Tony McNicol (2004-04-27). "Does comic relief hurt kids?". The Japan Times. Retrieved 2008-01-18.
35. "'Rorikon' trade nurturing a fetish for young females". Japan Today. 2004-03-22. Archived from the original on 2008-04-08. Retrieved 2008-01-13. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
36. Government of Canada (1984). Report of the Committee on Sexual Offenses against Children and Youth, Vols. 1-11, and summary. Government of Canada, Department of Supply and Service as "Badgely Report; Cat. No. J2-50/1984/E, Vols. 1-11, H74-13/1984-1E, Summary".
37. In Free Speech Coalition v. Reno {513 U.S. 64, 78} (later Ashcroft v. Free Speech Coalition), the court held that "actual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist."
38. ""Hotline proposed operational guidelines"「ホットライン運用ガイドライン案」等に対する意見の募集結果について" (in Japanese). Internet Association Japan. 2006-05-31. Retrieved 2008-01-10.
39. Can cartoon child pornography help paedophiles? Archived 2014-01-10 at the Wayback Machine radio Netherlands
40. Reza Banakar (2010). Rights in Context: Law and Justice in Late Modern Society. Ashgate Publishing. Retrieved February 19, 2019.
41. Benjamin Duranske (May 23, 2008). "New Supreme Court Opinion Discusses Virtual Child Pornography Law; Linden Lab's 2007 Ban Clarified".
42. ^ Ken D Linden (November 13, 2007). "Clarification of Policy Disallowing "Ageplay"".

Bibliography

• Brey, P., "Virtual Reality and Computer Simulation," in Himma and Tavani (2008), pp. 361–384.
• Duranske, B. (2008, May 23). "New Supreme Court Opinion Discusses Virtual Child Pornography Law; Linden Lab's 2007 Ban Clarified." Virtually Blind.
• Duranske, B. (2007, May 9). "Second Life Child Pornography Allegations Draw International Press Attention". Virtually Blind.
• Eko, Lyombe. "Regulation of Computer-generated virtual Child Pornography under American and French Jurisprudence: One Country’s Protected 'Speech' is another’s Harmful Smut." Paper presented at the annual meeting of the International Communication Association, Marriott Hotel, San Diego, CA, May 27, 2003 Online (PDF) 2009-12-04.

• Child pornography